WT/DS591/7/Add.1  
 
10 October 2022  
(22-7570) Page: 1/73 
  Original: English  
 
  
COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM  
BELGIUM,  GERMANY AND THE NETHERLANDS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C  to the Report of the Panel to be found in document 
WT/DS591/7.  
 
_______________  
 
 
 
 
 
  
 
 
 
 WT/DS591/7/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning  Business Confidential 
Information  11 
Annex  A-3 Additional Working Procedures of the Panel for virtual participation at the 
first substantive meeting  13 
Annex  A-4 Additional Working Procedures of the Panel for virtual participation  
at the second substantive meeting  16 
Annex  A-5 Additional Working Procedures of the panel to facilitate  arbitration under 
Article 25 of the DSU 19 
Annex  A-6 Interim Review  20 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  24 
Annex  B-2 Integrated executive summary of the arguments of Colombia  33 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of Japan  64 
Annex  C-3 Integrated executive summary of the arguments of the United States  69 
 
 
 WT/DS591/7/Add.1  
 
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  ANNEX A  
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex A -2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex A -3 Additional Working Procedures of the Panel for virtual participation at the  
First Substantive Meeting  13 
Annex A -4 Additional Working Procedures of the Panel for virtual participation  
at the Second Substantive Meeting  16 
Annex  A-5 Additional Working Procedures of the panel to facilitate  arbitration under 
Article 25 of the DSU 19 
Annex  A-6 Interim Review  20 
 WT/DS591/7/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 8 February 2021  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
 
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with th e parties.  
 
Confidentiality  
 
2. (1) The deliberations of the Panel and the documents submitted to it and by it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has design ated as confidential.  
 
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
 
(3) If a party submits a confidential version of its written su bmissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. The Panel may, upon 
request, fix a time -limit within which the party should endeavour to provide such summary.  
 
(4) Parties and third parties shall treat business confidential information in accordance with 
the procedures set forth in the Additional Working Procedures of the Panel Concerning 
Business Confidential Informatio n adopted by the Panel.  
 
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
 
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
 
(3) Each third party that chooses to make a writ ten submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
 
(4) The Panel may invite the parties or third parties to make additional submissions during 
the proceeding , including with respect to requests for preliminary rulings in accordance with 
paragraph  4 below.  
 
Preliminary rulings  
 
4. (1) If Colombia considers that the Panel should make a ruling before the issuance of the 
Report that certain measures or claims in t he panel request or the complainant's  first written 
submission are not properly before the Panel, the following procedure applies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
 
a. Colombia shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel and WT/DS591/7/Add.1  
 
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  shall identify clearly that it seeks a ruling pursuant to the present procedure. The 
European  Union shall submit its res ponse to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
 
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during o r after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
 
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
 
d. Any request for such a preliminary ruling by Colombia before or in its first written 
submission, and any subsequent  submissions of the parties in relation thereto before the 
first meeting, shall be served on all third parties. The Panel may provide all third parties 
with an opportunity to provide comments on any such request, either in their submissions 
as provided for  in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be shared with all third parties.  
 
(2) This procedure is without prej udice to the parties'  right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
 
Evidence  
 
5. (1) The Panel requests each party to submit all evidence supporting its case together with 
its first written submission. In any event, the parties shall submit all evidence to the Panel no 
later than during the first substantive meeting, except evidence necessary for purposes of 
rebuttal, or evidence ne cessary for answers to questions or comments on answers provided 
by the other party. Additional exceptions may be granted upon a showing of good cause.  
 
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the othe r party an appropriate period of time to comment on the new evidence 
submitted.  
 
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation o f the exhibit or 
relevant portion into the WTO working language of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
 
(2) Any objection as to the accuracy of a translation should  be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
 
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute , indicating the submitting Member and the number of each exhibit on 
its cover page. Exhibits submitted by the European Union should be numbered EU -1, EU -2, 
etc. Exhibits submitted by Colombia should be numbered COL -1, COL -2, etc. If the last exhibit 
in connection with the first submission was numbered COL -5, the first exhibit in connection 
with the next submission thus would be numbered COL -6. If a party withdraws an exhibit or 
leaves one or more exhibits intentionally blank, it should indicate this on the  cover page that 
provides the number of the blank exhibit.  
 
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions if an exhibit is 
attached to s uch submission, oral statement or responses to questions.  
 WT/DS591/7/Add.1  
 
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  (3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  
 
(4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit along with an indication of the date that it was accessed.  
 
Edito rial Guide  
 
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
 
Questions  
 
9. The Panel may pose questi ons to the parties and third parties at any time, including:  
 
a. Before any meeting, the Panel may send written questions, or a list of topics it intends to 
pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
 
b. The Panel may put questions to the parties and third parties orally during a meeting, and 
in writing following the meeting, as provided for in paragraphs  15 and 21 below.  
 
Substantive meetings  
 
10. The Panel shall meet in clos ed session.  
 
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it. 
 
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these 
Working  Procedures, particularly with regard to the confidentiality of the proceeding a nd the 
submissions of the parties and third parties.  
 
13. Each party shall provide to the Panel the list of members of its delegation no later than  
5 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
 
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
 
15. The first substantive meeting of the Panel with the parties shal l be conducted as follows:  
 
a. The Panel shall invite the European Union to make an opening statement to present its 
case first. Subsequently, the Panel shall invite Colombia to present its point of view. Before 
each party takes the floor, it shall provide  the Panel and other participants at the meeting 
with a provisional written version of its statement. If interpretation is needed, each party 
shall provide additional copies for the interpreters before taking the floor.  
 
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each party 
is invited to limit the duration of its opening statement according to the Panel's  instructions 
issued prior to the meeting. If either party considers that it requires more time for its 
opening statement, it should inform the Panel and the other party at least 5 working days 
before the meeting, together with an estimate of the expected duration of its statement. 
The Panel will accord equal time to the other party.  
 
c. After the conclusion of  the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions through the Panel.  WT/DS591/7/Add.1  
 
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d. The Panel may subsequently pose questions to the parties.  
 
e. Once the questioning has concluded, the Panel sh all afford each party an opportunity to 
present a brief closing statement, with the European Union presenting its statement first. 
Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional writte n version of its closing statement, if available.  
 
f. Following the meeting:  
 
i. Each party shall submit a final written version of its opening statement no later 
than 
ii. 5 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
iii. Each party shall send in writing, within the time -frame established by the Panel 
before the end of the meeting, any questions to the other party to which it wishes 
to receive a response in writing.  
iv. The Panel shall send in writing, within the time -frame established by the Panel 
before the end of the meeting, any questions to the parties to which it wishes to 
receive a response  in writing.  
v. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the 
Panel before the end of the meeting.  
16. The second substantive meeting of the Pane l with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that Colombia shall be given the 
opportunity to present its oral statement first. If Colombia chooses not to avail itself of that right, it 
shall inform the Panel and the other party no later than 5  p.m. (Geneva time) three working days 
before the meeting. In that case, the European Union shall present its opening statement first, 
followed by Colombia. The party that presented its opening stateme nt first shall present its closing 
statement first.  
 
Third -party session  
 
17. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose.  
 
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during 
the third -party session, along with the list of members of its delegation, in advance of this session 
and no later than 5  p.m. (Geneva time) three working days before the third -party session of the 
meeting with the Panel.  
 
19. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these 
Working  Procedures, particularly with regard to the confidentiality of the procee ding and the 
submissions of the parties and third parties.  
 
20. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow su fficient time to ensure availability of interpreters.  
 
21. The third -party session shall be conducted as follows:  
 
a. All parties and third parties may be present during the entirety of this session.  WT/DS591/7/Add.1  
 
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b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
alphabetical order. Each third party making an oral statement at the third -party session 
shall provide the Panel and other participants with a provisional written version of its 
statement before it takes the floor. If interpretation of a third party's  oral statement is 
needed, that third party shall provide additional copies for the interpreters before taking 
the floor.  
 
c. Each third party should limit the duration of its statement according to the 
Panel' s instructions issued prior to the session and avoid repetition of the arguments 
already in its submission. If a third party considers that it requires more time for its 
opening statement, it should inform the Panel and the parties at least 5 working days 
before the meeting, together with an estimate of the expected duration of its statement. 
The Panel will accord equal time to all third parties for their statements.  
 
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's  submission or statement.  
 
e. The Panel may subsequently pose questions to any third party.  
 
f. Following the third -party session:  
 
i. Each third party  shall submit the final written version of its oral statement, no 
later than 5  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the time -frame to be established by the 
Panel before the end of the  meeting, any questions to one or more third parties 
to which it wishes to receive a response in writing.  
iii. The Panel may send in writing, within the time -frame to be established by the 
Panel before the end of the meeting, any questions to one or more third parties 
to which it wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions 
from the Panel or a party, within a time -frame established by the Panel before 
the end of the meeti ng. 
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel Report shall consist of executive summaries provided by the parties and third parties, which 
shall be a nnexed as addenda to the Report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's  examination of the 
case. 
 
23. Each party shall submit a single integrated executive su mmary of the facts and arguments as 
presented to the Panel in its written submissions and oral statement(s), in accordance with the 
timetable adopted by the Panel. The integrated executive summary may also include a summary of 
its written responses to writ ten questions.  
 
24. The integrated executive summary shall not exceed 30  pages.  
 
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadl ine is not specified 
in the timetable.  
 
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive  summary may also include a summary of written responses to written 
questions, if relevant. The executive summary to be provided by each third party shall not exceed 
six pages. If the document(s) comprising a third -party submission and/or oral statement do es not WT/DS591/7/Add.1  
 
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  exceed six  pages in total, this will serve as the executive summary of that third party's  arguments 
unless the third party submits a separate integrated executive summary or otherwise indicates that 
it does not wish those document(s) to serve as its  executive summary.  
 
Interim review  
 
27. Following issuance of the Interim Report, each party may submit a written request to review 
precise aspects of the Interim Report and request a further meeting with the Panel, in accordance 
with the timetable adopte d by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
 
28. Each party may submit written comments on the other party's  written request for review. 
Such written comments shall be limited to the other party's  written request for review and shall be 
submitted in accordance with the timetable adopted by the Panel.  
 
Interim and Final Report  
 
29. The Interim Report, as well as the Final Report before its official circu lation, shall be kept 
strictly confidential and shall not be disclosed.  
 
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
 
a. Each party and third party shall send an email to the DS Registry attaching an electronic 
copy of all documents that it submits to the Panel, in both Microsoft Word and PDF format. 
To the extent possible, all documents in PDF format, including exhibits, sh ould be 
searchable and editable (i.e. not "image -only" or scanned). All such emails to the Panel 
shall be addressed to DSRegistry@wto.org  and copied to other WTO Secretariat staff 
whose email addresses have been  provided to the parties during the proceeding. If it is 
not possible to attach all the exhibits to one email, the submitting party or third party may 
send separate emails. If the number of emails necessary to transmit the exhibits would 
exceed 5 or any on e exhibit is too large to be transmitted via email, the party shall upload 
the relevant exhibits to the Disputes On -line Registry Application (DORA). The email 
version sent to the DS Registry shall constitute the official version for the purposes of 
submis sion deadlines and the record of the dispute, and shall, with respect to the due 
dates established by the Panel, be sent by 5  p.m. (Geneva time).  
 
b. In addition, each party and third party is invited to submit all documents through DORA 
within 24 hours fo llowing the deadline for the submission by email. If the parties or 
third parties have any questions or technical difficulties relating to DORA, they are invited 
to consult the User Guide available in the "Help" section of DORA and if necessary contact 
the DS Registry (DSRegistry@wto.org).  
 
c. Following email submission, each party and third party shall submit three paper copies of 
all documents it submits to the Panel, including the exhibits, with the DS Registry 
(office  No. 2047) by 5  p.m. (Geneva time) t he next business day. If, for any reason, the 
WTO building is extraordinarily closed, the "next business day" will mean the day that the 
Panel determines for such filings once normal operations have resumed. If the Member 
does not have a mission or represe ntative in Geneva the submissions may be sent by post 
or courier and must have a postmark or proof that they were sent the next business day 
after the submission was due. The DS Registrar shall stamp the documents with the date 
and time of receipt. If an e xhibit is in a format that is impractical to submit as a paper 
copy, then the party may submit such exhibit in electronic format (e.g. USB key). In this 
case, the cover page of the exhibit should indicate that the exhibit is only available in 
electronic fo rmat.  
 
d. The receipt of the email by the DS Registry shall constitute service on the Panel. Each 
party shall serve any document submitted to the Panel directly on the other party. A party 
shall submit its documents to the other party by email. Each party shall confirm, in writing, 
that it has served on the other party, as appropriate, at the same time it provides each WT/DS591/7/Add.1  
 
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  document to the Panel, a copy of such documents. Each party shall, in addition, serve any 
document submitted in advance of the first substan tive meeting with the Panel directly on 
the third parties. The receipt of the email by the other party and the third parties (where 
relevant) shall constitute service.  
 
e. As a general rule, all communications from the Panel to the parties and third partie s will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report upon 
request.  
 
Correction of clerical errors in submissions  
 
31. The Panel may g rant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly fol lowing the filing 
of the submission in question.  
 
Developments in circumstances  
 
32. The Panel will conduct the proceedings and apply the present procedures in such a way as to 
mitigate circumstances arising from the COVID -19 pandemic. The Panel may provid e further 
guidance in that regard as any such circumstances develop. If the Panel considers that the present 
Working Procedures cannot be applied effectively because of the COVID -19 pandemic, the Panel 
may modify these Procedures after consultation with th e parties.  
 
Appeal arbitration  
 
33. The Panel takes note of the Agreed Procedures for Arbitration under Article  25 of the DSU in 
this dispute notified by the parties on 13  July 2020 (WT/DS591/3) and of the joint requests of the 
parties to the Panel formulated therein.  
 WT/DS591/7/Add.1  
 
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING BUSINESS 
CONFIDENTIAL INFORMATION  
Adopted on 8 February 2021  
The following procedures apply to any business confidential information (BCI) submitted during 
the Panel proceedings in DS591.  
1. For the  purposes  of these  Panel  proceedings,  BCI includes:  
a. any information designated as such by the party submitting it that was previously 
treated as confidential by the investigating authority in the anti-dumping 
investigation  at issue  in this dispute  unless  the Panel  decides  it should  not be treated 
as BCI for purposes of these Panel proceedings based on an objection by a party 
pursuant to paragraph  3 below.  
b. any other information designated as such by the party submitting it, unless the 
Panel decides it should not be treated as BCI for purposes of these Panel 
proceedings based on an objection by a party pursuant to paragraph  3 below.  
2. Any information that is available in the public domain may not be designated as BCI. In 
addition, information previously treated as confidential by the investigating authority i n the  
anti-dumping investigation at issue in this dispute may not be designated as BCI if the person 
or entity who provided the information in the course of that investigation agrees in writing to 
make the information publicly  available.  
3. If a party or third party considers that information submitted by the other party or a 
third party should have been designated as BCI and objects to its submission without such 
designation, it shall forthwith bring this objection to the attention of the Panel , the other party, 
and, where relevant, the third parties, together with the reasons for the objection. Similarly, 
if a party or third party  considers  that the other  party  or a third party  designated  information  
as BCI which  should not be  so designated,  it shall forthwith  bring  this objection  to the attention  
of the Panel,  the other  party, and, where relevant, the third parties, together with the reasons 
for the objection. The Panel, in deciding  whether  information  subject  to an objection  should  be 
treated  as BCI  for purposes  of these Panel  proceedings,  will consider  whether  disclosure  of the 
information  in question  could  cause  serious harm to the interests of the originator(s) of the  
information.  
4. No person  may have access  to BCI except  a member  of the Secretariat  assisting  the Panel  
or the Panel, an employee of a party or third party, or an outside advisor to a party or 
third party for the purposes of this  dispute.  
5. A party or third party having access to BCI in these Panel proceedings shall not disclose 
that information  other  than to persons  authorized  to have access  to it pursuant  to these  
procedures.  Any information designated as BCI under these procedures shall only be used for 
the purposes of this dispute. Each party and third party is responsible for ensuring that its 
employees and/or outside advisors  comply  with these  procedures  to protect  BCI. 
6. An outside  advisor  of a party  or third party  is not permitted  access  to BCI if that advisor  
is an officer or employee of an enterprise engaged in the production, sale, export, or import 
of the product(s) that was/were the subject of the investigation at issue in this dispute, or an 
officer or employee  of an association  of such enterprises.  All third -party  access  to BCI shall be 
subject  to the terms of these working  procedures.  
7. The party submitting BCI shall mark the cover and/or first page of the document 
containing BCI, and each page of the document, to indicate the presence of such information. WT/DS591/7/Add.1  
 
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  The specific information  in question  shall be placed  between  double  brackets,  as follows:  
[[xx,xxx.xx]].  The first page or cover of the document shall state "Contains Business 
Confidential Information", and each page of the document shall contain the notice "Contains 
Business Confidential Information" at the top of the page. In case of exhibits, the party 
submitting BCI in the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g. 
Exhibit EU -1 (BCI)). Should the party submit specific BCI within a document which is considered 
to be public, the specific information in question shall be placed  between  double  brackets,  as 
follows:  [[xx,x  xx.xx]]".  
8. Any BCI that is submitted  in binary -encoded  form shall be clearly  marked  with the 
statement "Business Confidential Information" on a label of the storage medium, and clearly 
marked with the statement "Business Confidential Information" in the binary -encoded  files. 
9. In the case of an oral statement containing BCI, the party or third party making such a 
statement  shall inform  the Panel  before  making  it that the statement  will contain  BCI, and the 
Panel will ensure that only persons authorized to have access to BCI pursuant to these 
procedures are in the room to hear that statement. The written versions of such oral 
statements submitted to the Panel  shall be marked  as provided  for in paragraph  7. 
10. Any person  authorized  to have access  to BCI under  the terms  of these  procedures  shall 
store all documents containing BCI in such a manner as to prevent unauthorized access to such 
information.  
11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion  drawn  from such information.  Before  the Panel  circulates  its final report  to the 
Members, the  Panel  will give each party  an opportunity  to review  the report  to ensure  that it 
does not contain any information that the party has designated as BCI. 
12. Submissions containing BCI will be included in the record forwarded to the 
Appellate  Body in the event of an appeal of the Panel's  Report. The same applies to the Panel 
record transmitted to the arbitrators  pursuant  to paragraph  4(ii) of the Agreed  Procedures  for 
Arbitration  under  Article  25 of the DSU (WT/DS591/3).  
 WT/DS591/7/Add.1  
 
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  ANNEX A -3 
ADDITIONAL WORKING PROCEDURES OF THE PANEL FOR VIRTUAL PARTICIPATION  
AT THE FIRST SUBSTANTIVE MEETING  
Adopted on 14 July 2021  
General  
1. These additional Working Procedures set out terms for holding a first substantive meeting with 
the Panel in which all participants participate virtually.  
Definitions  
2. For the purposes of these Procedures:  
"Participant"  means any person participating in the virtual meetin g with the Panel. This 
includes the members of the parties'  and third parties'  delegations, the members of the Panel, 
the members of the Secretariat team assisting the Panel, and the interpreters.  
"Platform"  means the Cisco Webex Legislate software through  which participants will 
participate in the meeting with the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to participate in the meeting with the Panel.  
"DORA" means Dis putes Online Registry Application.  
Equipment and technical requirements for participation  
3. Each party and third party shall ensure that all members of its delegation join the meeting 
using the designated platform, and meet the minimum equipment and technical requirements 
set out by the platform provider for the effective conduct of the meeting.  
4. Technical questions, including the minimum equipment and technical requirements for the 
usage of the Platform, will be addressed in the advance testing sessions between the host and 
the participants provided for in paragraph  6 below.  
Technical support  
5. (1) In light of the Secretariat's  limited ability to offer technical assistance during, and in 
advance of the meeting, each party and third party  is, in principle, responsible for providing 
its own technical support to the members of its delegation.  
(2) The host will assist participants in accessing and using the platform in advance of and 
during the meeting with the Panel.  
(3) In order to provide timely assistance, the host will prioritize assisting those members 
of the delegations designated as main speakers on the delegations'  lists. 
Registration  
6. Each party and third party shall provide to the Panel the list of the members of its delegation 
by returning the completed form in Annex  I below, no later than 4  p.m. (Geneva time) on 
Friday, 16  July 2021. Each party and third party shall indicate who among the members of 
their delegation will be their main speaker(s).  WT/DS591/7/Add.1  
 
- 14 - 
 
  Advance testing  
7. The members of  the parties'  and third parties'  delegations will hold two testing sessions with 
the Secretariat, at dates to be established separately. One of these sessions will be a joint 
session with all participants in the meeting, including the members of the Panel and the 
Secretariat. Participants should make themselves available for the testing sessions.  
Confidentiality and security  
8. The meeting shall be confidential.  
9. The requirements concerning the treatment of confidential and business confidential 
informati on, set forth in the Working Procedures of the Panel and the Additional Working 
Procedures of the Panel Concerning Business Confidential Information, adopted on 
8 February  2021, apply and must be observed by the parties and third parties.  
10. Participants shall connect to the virtual meeting through a secure internet connection and shall 
avoid the use of an open or public internet connection.  
11. The parties and third parties are strictly prohibited from:  
(1) Recording, via audio, video or screenshot, the v irtual meeting or any part thereof; and  
(2) Permitting any non -participant to record, via audio, video or screenshot, the virtual 
meeting or any part thereof.  
Simultaneous interpretation  
12. Simultaneous interpretation between English and Spanish will be a vailable for the participants 
through the platform.  
Conduct of the meeting  
Access to the virtual meeting room  
13. (1) The host will invite participants via email to join the virtual meeting room on the 
platform. This email will provide each participant with its personal access and login 
information.  
(2) For security reasons, access to the virtual meeting will be password -protected and 
limited to members of the delegations, as listed in the completed Annex  I form, who shall not 
forward or share the virtual meeting link or password.  
(3) Each party and third party shall ensure that only members of its delegation join the 
virtual meeting room.  
Advance log -on 
14. (1) The virtual meeting room will be accessible 60  minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
(2) Participants shall log on to the platform at least 30  minutes in a dvance of the scheduled 
start time of each session of the meeting with the Panel.  
Participation  
15. (1) If a participant wishes to take the floor, the participant should use the "raise a hand" 
function on the platform.  WT/DS591/7/Add.1  
 
- 15 - 
 
  (2) All participants are encouraged t o use their cameras during the entirety of the meeting. 
Participants should turn on their camera when taking the floor. Participants should turn off 
their microphones when others take the floor.  
Document sharing  
16. (1) Before each party and third party ta kes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement through DORA, 
at the time indicated below.  
(2) Any participant wishing to share a document with the other participants durin g the 
meeting will do so through DORA, before first referring to such document at the meeting.  
17. The European Union shall upload the provisional written version of its opening statement on 
DORA no later than 15  minutes before the beginning of the session  on the first meeting day 
(27 July 2021). After the European Union has concluded its opening statement, the Panel will 
break for approx. 15  minutes. Colombia shall upload the provisional written version of its 
opening statement on DORA no later than at the  beginning of that break. To facilitate a 
fulsome engagement of all members of the Panel with the parties'  opening statements, the 
Panel invites each party to submit a courtesy translation in English or Spanish, as appropriate, 
together with the provisiona l written version of its opening statement.  
18. Each third party shall upload a provisional written version of its opening statement on DORA 
no later than 15  minutes before the beginning of the session on the second meeting day 
(28 July 2021).  
19. The Pane l will break for approx. 15  minutes each before and between the parties'  closing 
statements. Each party shall upload a provisional written version of its closing statement, if 
available, on DORA no later than at the beginning of the break preceding its clo sing statement.  
Pauses for internal coordination and consultation  
20. The Panel may briefly pause a session at any time, at its own initiative or upon request by a 
party or third party, to enable any necessary internal coordination and consultation within a 
party's  or third party's  delegation and/or among the Panelists.  
Technical issues  
21. (1) Each party and third -party shall designate a contact person who can liaise with the host 
during the meeting to report any technical issues that arise with respect to  the platform. The 
host can be contacted via the platform, by sending an email to olga.falguerasalamo@wto.org , 
or by calling at +41 22 739 6746.  
(2) Should any technical interruptions occur, the host will directly coordinate with the 
affected participants to resolve the issue. After consulting the parties, the Panel may pause 
the session until the technical issue is resolved or may decide to continue the proceedings 
with those participants that remain conne cted. In preparing for the meeting, the parties and 
third parties are invited to ensure that an alternate member of its delegation is able to deliver, 
or to continue to deliver, statements and answers to questions in case that a designated 
speaker encounte rs technical difficulties or connectivity issues.  
Relation with the Working Procedures  
22. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on  8 February  2021 and prevail over the latter to the extent of any conflict.  
 WT/DS591/7/Add.1  
 
- 16 - 
 
  ANNEX  A-4 
ADDITIONAL WORKING PROCEDURES OF THE PANEL FOR VIRTUAL PARTICIPATION  
AT THE SECOND SUBSTANTIVE MEETING  
Adopted on 17  January  2022  
General  
1. These additional Working Procedures set out terms for holding a second substantive meeting 
with the Panel in which all participants participate virtually.  
Definitions  
2. For the purposes of these Procedures:  
"Participant"  means any person participating in the virtual meeting with the Panel. This 
includes the members of  the parties'  delegations, the members of the Panel, the members of 
the Secretariat team assisting the Panel, and the interpreters.  
"Platform"  means the Cisco Webex Legislate software through which participants will 
participate in the meeting with the Pane l. 
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to participate in the meeting with the Panel.  
"DORA" means Disputes Online Registry Application.  
Equipment and technical requirements for participation  
3. Each party shall ensure that all members of its delegation join the meeting using the 
designated platform, and meet the minimum equipment and technical requirements set out 
by the platform provider for the effect ive conduct of the meeting.  
4. Technical questions, including the minimum equipment and technical requirements for the 
usage of the Platform, will be addressed in the advance testing sessions between the host and 
the participants provided for in paragraph  7 below.  
Technical support  
5. (1) In light of the Secretariat's  limited ability to offer technical assistance during, and in 
advance of the meeting, each party is, in principle, responsible for providing its own technical 
support to the members of its delegation.  
(2) The host will assist participants in accessing and using the platform in advance of and 
during the meeting with the Panel.  
(3) In order to provide timely assistance, the host will prioritize assisting those members 
of the delegations design ated as main speakers on the delegations'  lists. 
Registration  
6. Each party shall provide to the Panel the list of the members of its delegation by returning the 
completed form in Annex I below, no later than 5:00 p.m. (Geneva time) on Wednesday, 
19 Januar y 2022. Each party shall indicate who among the members of their delegation will 
be their main speaker(s).  WT/DS591/7/Add.1  
 
- 17 - 
 
  Advance testing  
7. The members of the parties'  delegations will hold two  test sessions with the Secretariat, at 
dates to be established separately. O ne of these sessions will be a joint session with all 
participants, including the members of the Panel and the Secretariat team. Participants should 
make themselves available for the test sessions.  
Confidentiality and security  
8. The meeting shall be confi dential.  
9. The requirements concerning the treatment of confidential and business confidential 
information, set forth in the Working Procedures of the Panel and the Additional Working 
Procedures of the Panel Concerning Business Confidential Information, a dopted on 
8 February  2021, apply and must be observed by the parties.  
10. Participants shall connect to the virtual meeting through a secure internet connection and shall 
avoid the use of an open or public internet connection.  
11. The parties are strictly prohibited from:  
(1) Recording, via audio, video or screenshot, the virtual meeting or any part thereof; and  
(2) Permitting any non -participant to record, via audio, video or screenshot, the virtual 
meeting or any part thereof.  
Simultaneous interpretation  
12. Simultaneous interpretation between English and Spanish will be available for the participants 
through the platform.  
Conduct of the meeting  
Access to the virtual meeting room  
13. (1) The host will invite participants via email to join the virtual meeti ng room on the 
platform. This email will provide each participant with its personal access and login 
information.  
(2) For security reasons, access to the virtual meeting will be password -protected and 
limited to members of the delegations, as listed in the  completed Annex I form, who shall not 
forward or share the virtual meeting link or password.  
(3) Each party shall ensure that only members of its delegation join the virtual meeting 
room.  
Advance log -on 
14. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
(2) Participants shall log on to the platform at least 30  minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
Participation  
15. (1) If a participant wishes to take the floor, the participant should use the "raise a hand" 
function on the platform.  WT/DS591/7/Add.1  
 
- 18 - 
 
  (2) All participants are encouraged to use their cameras during the entirety of the meeting. 
Participants should turn o n their camera when taking the floor. Participants should turn off 
their microphones when others take the floor.  
Document sharing  
16. Before each party takes the floor to deliver its opening statement, it shall provide the Panel 
and other participants at t he meeting with a provisional written version of the statement 
through DORA, clearly marking it "check against delivery".  
17. Before each party takes the floor to deliver its closing statement, it shall provide the Panel 
and other participants at the meeti ng with a provisional written version of the statement, if 
available, through DORA, clearly marking it "check against delivery".  
18. Any participant wishing to share a document with the other participants during the meeting 
will do so through DORA, before first referring to such document at the meeting. Documents 
that are already on the Panel's  record as exhibits need not be shared through DORA again. If 
a delegate wishes to display a section of such a document on screen when taking the floor, 
the delegate is requested to advise the Panel accordingly when making the statement at the 
meeting. A member of the Secretariat team will then share the relevant section of the exhibit 
through the platform. To facilitate this process during the meeting, the delegation may inform 
the Secretariat team in advance of the exhibit number that it intends to refer to at the meeting.  
Pauses for internal coordination and consultation  
19. The Panel may briefly pause a session at any time, at its own initiative or upon request by a  
party, to enable any necessary internal coordination and consultation within a 
party's  delegation and/or among the Panelists.  
Technical issues  
20. (1) Each party shall designate a contact person who can liaise with the host during the 
meeting to report an y technical issues that arise with respect to the platform. The host can 
be contacted via the platform, by sending an email to kent.gisiger@wto.org, or by calling at 
+41 22 739 6586.  
(2) Should any technical interruptions occur, the host will directly coor dinate with the 
affected participants to resolve the issue. After consulting the parties, the Panel may pause 
the session until the technical issue is resolved or may decide to continue the proceedings 
with those participants that remain connected. In prep aring for the meeting, the parties are 
invited to ensure that an alternate member of its delegation is able to deliver, or to continue 
to deliver, statements and answers to questions in case that a designated speaker encounters 
technical difficulties or co nnectivity issues.  
Relation with the Working Procedures  
21. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on  8 February  2021 and prevail over the latter to the extent of any conflict.  
 WT/DS591/7/Add.1  
 
- 19 - 
 
  ANNEX A -5 
ADDITIONAL WORKING PROCEDURES OF THE PANEL TO FACILITATE  
ARBITRATION  UNDER ARTICLE  25 OF THE DSU1 
Adopted on 29  August  2022  
Transmission  of the Panel Report  
1. After issuance of the final panel report to the parties and upon a request to suspend the Panel 
proceedings for purposes of facilitating an arbitration under the Agreed Arbitration Procedures, 
the Panel shall transmit the final Panel Report in the three working languages of the WTO 
(the "Translated Report") to the parties, third par ties and the pool of arbitrators.2,.3 
2. If the Translated Report is not yet available when the request for suspension is made, the 
Panel shall transmit immediately the original English language version of the final Panel Report 
(the "original final Pane l Report") to the pool of arbitrators. The Panel shall transmit the 
Translated Report as per paragraph  1, once the translations become available.  
Suspension of the panel proceedings  
3. Once the Translated Report has been transmitted to the parties, third p arties and the pool of 
arbitrators, the Panel shall grant the request to suspend the Panel proceedings and indicate 
when suspension takes effect.  
Transmission of the Panel record  
4. In the event that a notice of recourse to Article  25 under the Agreed Arbitration Procedures 
("Notice of Appeal"4) is filed, the Panel shall, once suspension of the Panel proceedings has 
taken effect and as soon as possible after the arbitrators have been appointed, transmit the 
record of the Panel proceedings to the  arbitrators. The Panel shall consult with the third parties 
concerned with a view to transmitting, as part of the Panel record, the third -party submissions, 
third-party oral statements and third -party responses to questions.  
Transmission of the Panel Repo rt and the Panel record through DORA  
5. Transmission of the final Panel Report, the Translated Report and the Panel record, as 
appropriate, shall take place through the WTO Disputes On -Line Registry Application (DORA).  
Confidentiality of the Panel Report a nd the Panel Record  
6. Once transmitted to the parties, third parties and the pool of arbitrators, the original final 
Panel Report and/or the Translated Report remain confidential. In the event of the filing of a 
Notice of Appeal, confidentiality of the Tr anslated Report is thereby lifted such that the 
Notice  of Appeal, which will be circulated as an unrestricted DS document, may include the 
Translated Report.5 
 
1 See paragraph  1.14 of the Panel Report and the parties' Agreed Procedures for Arbitration under 
Article  25 of the DSU (WT/DS591/3/Rev.1) ("Agreed Arbitration Procedures"). Through the present 
Additional  Working Procedures of the Panel, the Panel accedes to, and operationalizes the modalities of, the 
parties' joint request formulated in paragraphs  4 and 19 of the Agreed Arbitration Procedures.  
2 Unless the parties indicate otherwise, the "pool of arbitrators" shall be understood to comprise all 
individuals identified in JOB/DSB/1/Add .12/Suppl.5, as validated in JOB/DSB/1/Add.12/Suppl.8.  
3 It is understood that transmission of the Translated Report shall not constitute circulation of the Panel 
Report within the meaning of Article  16 of the DSU.  
4 In the Agreed Arbitration Procedures, t he parties refer to this notice as a Notice of Appeal and we use 
this term accordingly in these Additional Working Procedures.  
5 In paragraph  5 of the Agreed Arbitration Procedures, the parties envisage that the Notice of Appeal 
shall include the Translate d Report.  WT/DS591/7/Add.1  
 
- 20 - 
 
  ANNEX A -6 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  In accordance with Ar ticle 15.3 of the DSU, this annex sets out our discussion and disposition 
of Colombia's requests for interim review and the European Union's comments thereupon.1 
1.2.  As explained below, we have made certain modifications  to the Report in light of the 
parties'  arguments made at the interim review stage. The numbering of footnotes in the Final Report 
has changed from the Interim Report. The numbering of the paragraphs in the Final Report remains 
the same as in the Interim R eport.  
1.3.  In addition to the modifications specified below, the Panel also made certain other 
typographical and other non -substantive changes to its Report.  
2  COLOMBIA'S REQUESTS FOR REVIEW OF THE INTERIM REPORT  
2.1  Paragraph  3.3 
2.1.  Colombia requests the addition of the word "also" in the last sentence of this paragraph in 
order to "fully" capture the "logical connection" between this sentence and the preceding sentence.2 
2.2.  While the European Union does not consider the add ition of the word "also" to be necessary, it 
does not oppose Colombia's request.3 
2.3.  The addition of the term "also" does not, in our view, alter the content or substance of the 
paragraph and we have therefore made the modification requested by Colombi a. 
2.2  Paragraph  7.67 
2.4.  Colombia requests that this paragraph be expanded to reflect its arguments in a more complete 
manner, because, in its current form, it does not mention all the relevant elements of its arguments, 
and, moreover, the brevity of t he summary of its arguments stands in contrast to the much longer 
summary of the European Union's arguments.4 
2.5.  The European Union observes that certain of Colombia's requests go beyond merely reflecting 
"a more extensive description" of Colombia's ar guments. Therefore, in the event the Panel accedes 
to Colombia's requests, the European Union requests the Panel to strictly limit this to direct citations 
of Colombia's submissions, and to not add any new language or modify the existing language 
summarizi ng or qualifying those submissions.5 
2.6.  We have included in our summary all elements of Colombia's arguments that we consider to 
be relevant to our analysis. Moreover, the parties' executive summaries of their arguments are 
already appended to the Repo rt and also set out, in detail, their respective positions. To address 
Colombia's comment concerning the alleged brevity of the summary of its arguments in comparison 
to the summary of the European Union's position, we have made certain modifications to th is 
paragraph by including additional text from Colombia's submissions in these proceedings.  
 
1 The European Union did not request that the Panel review precise aspects of the Interim Report.  
2 Colombia's request for interim review, para.  2.1. 
3 European Union's comments on Colombia's request for interim review, para.  3. 
4 Colombia's request for interim review, para.  2.2. 
5 European Union's comments on Colombia's request for interim review, paras.  4-7. WT/DS591/7/Add.1  
 
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  2.3  Paragraph  7.71 
2.7.  Colombia requests that this paragraph be modified to include a reference to its alternative 
argument that "even if the words 'where approp riate' required an analysis as to why domestic sales 
prices were not used, the petitioner and [MINCIT] complied with this requirement in the instant 
investigation". According to Colombia, in its current form, the paragraph – together with the 
remainder of the Panel's reasoning and the previous description of the parties' arguments – does 
not make sufficiently clear Colombia's explicit alternative argument.6 
2.8.  In addition to its above response with respect to Colombia's comments concerning 
paragraph  7.67 of the Interim Report, the European Union submits that Colombia is in fact 
requesting that the Panel include an additional finding that the petitioner or the investigating 
authority satisfied the requirement to explain the reasons why information on dome stic sales was 
not provided in the application or examined in the initiation decision. For the European Union, this 
proposed finding would flatly contradict the Panel's finding in paragraph  7.75 of the Interim Report, 
and it also appears to ignore the fact  that, in the preceding paragraph  7.74, the Panel quoted 
paragraph  2.1.3 of the initiation decision, and found that it did not contain the required explanation.7 
2.9.  We consider that the argument identified by Colombia is already reflected and addressed  
elsewhere in the Panel Report.8 We therefore do not grant Colombia's request.  
2.4  Paragraphs  7.124 and 7.125  
2.10.   Colombia requests the Panel to include verbatim  the three tables contained in 
paragraphs  4.10, 4.12, and 4.14 of its second written submi ssion. According to Colombia, given that 
the Interim Report finds that the comparisons in these tables are not enough to show that the 
information was the same, these tables would allow the reader to compare visually the information 
submitted in the origin al application to the redacted information in the revised application.9 
2.11.   The European Union does not see the need to include the three tables identified by Colombia. 
The European Union argues that the finding made by the Panel in paragraph  7.125 of the 
Interim  Report is that other interested parties in the investigation could not have "easily" inferred 
that the redacted information in the revised application was the same as the relevant information 
contained in the original application.10 
2.12.   Colombia has not identified any error or suggested any revisions, but merely contends that 
"[g]iven that the interim report finds that the comparisons in these tables are not enough to show 
that the information was the same", the inclusion of these tables "would allow the reader to compare 
visually the information submitted in the original application" to "the redacted information in the 
revised application".  
2.13.   We recall that in paragraph  7.125 of the Report, we have already explained that: "the  fact 
that the relevant tables share the same title, structure, and source of information does not, alone, 
demonstrate (or make it easy to 'infer') that the specific 'values' or 'trends' redacted in one table 
are the same  as the 'values' or 'trends' allegedly available in another table." In light of this 
paragraph, we do not grant Colombia's request.  
2.5  Paragraph  7.183  
2.14.   Colombia disagrees with the Panel's characterization that Colombia's arguments "evolved 
during t he proceedings" and contends that its position remained "exactly the same", specifically 
"[t]hat the investigating authority's explicit determination to use facts available is a 'key condition', 
but not the sole condition".11 Therefore, Colombia requests t hat the Panel delete paragraph  7.183.12 
 
6 Colombia's request for interim review, par as. 2.3-2.4. 
7 European Union's comments on Colombia's request for interim review, paras.  4-7. 
8 Panel Report, paras.  7.67 and 7.69 -7.75. 
9 Colombia's request for interim review, para.  2.5. 
10 European Union's comments on Colombia's request for interim revi ew, para.  9. 
11 Colombia's request for interim review, paras.  2.7, 2.9, and 2.12.  
12 Colombia's request for interim review, para.  2.6. WT/DS591/7/Add.1  
 
- 22 - 
 
  2.15.   The European Union concurs with the Panel's description that Colombia's arguments "evolved 
during the proceedings" and thus objects to Colombia's request.13 
2.16.   While we decline Colombia's request to delete  this paragraph, we have removed the reference 
to Colombia's arguments having "evolved during the proceedings" and, for greater clarity, quoted 
the text of Colombia's underlying statements.  
2.6  Paragraph  7.190  
2.17.   Colombia makes several requests in res pect of this paragraph. First, Colombia requests that 
the Panel delete the words "and rejected" because, in its view, the Panel did not "reject" 
Colombia's  arguments on substance.14 Second, Colombia asks the Panel to delete the term 
"post factum " because t hese words evoke the separate and distinct concept of " ex post 
rationalization".15 Third, Colombia proposes to add a new sentence at the end of the paragraph.16 
2.18.   The European Union opposes Colombia's requests because it considers that the text in the  
paragraph at hand is accurate, and that Colombia's proposed changes would distort the 
Panel's  findings.17 
2.19.   Removing the words "and rejected" and " post factum " does not alter the content or substance 
of the paragraph and we have therefore made the re quested changes. We have also supplemented 
the text of the paragraph by paraphrasing the findings made in paragraph  7.188.  
2.7  Paragraph  7.282  
2.20.   Colombia requests the Panel to modify this paragraph and to add that MINCIT explained the 
relevance of no n-dumped imports for the domestic industry.18 
2.21.   The European Union does not consider such addition to be necessary for the Panel's findings 
and adds that it, in any event, lacks relevance in the context of this paragraph of the Interim Report 
and woul d wrongly imply that certain matters are "agreed" facts.19 
2.22.   As the European Union points out, Colombia's requested modifications go beyond the scope 
of the Panel's analysis as reflected in paragraph  7.282, which is limited to noting the 
parties'  agreement on the factual issue of what imports were included in MINCIT's injury and 
causation analysis. We are therefore unable to grant Colombia's request.  
_______________  
 
 
13 European Union's comments on Colombia's request for interim review, para.  10. 
14 Colombia's request for interim review, para.  2.20. 
15 Colombia's request for interim review, para.  2.21. 
16 Colombia's request for interim review, para.  2.22. 
17 European Union's  comments on Colombia's request for interim review, para.  11. 
18 Colombia's request for interim review, paras.  2.23-2.24. 
19 European Union's comments on Colombia's request for interim review, paras.  12-15. WT/DS591/7/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  24 
Annex  B-2 Integrated executive summary of the arguments of Colombia  33 
 
 
 
 WT/DS591/7/Add.1  
 
- 24 - 
 
  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF THE EUROPEAN UNION  
1.  INTRODUCTION  
1. Following a complaint lodged by the Colombian Federation of Potato Producers (FEDEPAPA), 
the Colombian Ministry of Trade, Industry and Tourism ("Ministerio de Comercio, Industria y 
Turismo", "MINCIT") opened an administrative investigation for the purpose of determining 
the existence, degree and effects on the domestic industry of alleged dumping of imports of 
potatoes, prepared or preserved otherwise than by vinegar or acetic acid, frozen, classified 
under tariff subheading  2004.10.00.00 originating in Belgium, the Netherlands (Holland) and 
Germany.  
2. Tariff subheading 2004.10.00.00 includes both "traditional chips and fries", which are similar 
to potato products produced on the Colombian market, and "potato specialties", whic h differ 
from traditional potatoes in their physical appearance and final sales price (160% more 
expensive).  
3. The product mix exported to Colombia by the investigated producers consists quasi exclusively 
of products of the first category, while the produ ct mix sold in the European Union comprises 
significant volumes of the second category. Other price -relevant differences exist between the 
respective product mixes relating to coating, size, cuts, shapes etc.  
4. On 27  August  2018, MINCIT circulated the Tec hnical Report on Essential Facts. The Final 
Technical Report and the Final Determination were published on 9  November  2018. MINCIT 
imposed anti -dumping duties on imports of potatoes, prepared or preserved otherwise than 
by vinegar or acetic acid, frozen, c lassified under tariff subheading 2004.10.00.00 originating 
in Belgium, the Netherlands (Holland) and Germany, in the form of an ad valorem  duty to be 
settled on the free on board (FOB) value declared by the importer, in addition to the tariff in 
force on the National Customs Tariff, as follows:  
o from Belgium: Mydibel S.A.: 8.01%;  
o from the Netherlands (Holland):  
▪ Aviko B.V.: 3.64%;  
▪ OTHER EXPORTERS: 44.52% (except Farmfrites B.V.);  
o from Germany: Agrarfrost GmbH & Co. KG.: 3.21%.  
2.  CLAIMS RELATING TO INITIATI ON AND CONFIDENTIALITY OF INFORMATION 
SUBMITTED BY THE APPLICANT  
2.1.  Violation of Article  5.3 of the Anti -Dumping Agreement  
5. The application submitted by FEDEPAPA did not contain all the information required by 
Article  5.2 of the Anti -Dumping Agreement . It also did not include sufficient evidence of 
dumping, injury, and the existence of a causal link between the dumped imports and the 
alleged injury. Yet, MINCIT decided to initiate an investigation of the alleged dumping of the 
product imported from Bel gium, Germany and the Netherlands under tariff subheading 
2004.10.00.00 on the basis of insufficient evidence, thereby acting inconsistently with 
Colombia's  obligations under Article  5.3 of the Anti -Dumping Agreement.  WT/DS591/7/Add.1  
 
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  2.1.1 .  Lack of sufficient evidence with respect to product under consideration  
6. MINCIT failed to verify whether FEDEPAPA's  application and supporting evidence justified the 
initiation of an investigation covering all products originating in Belgium, Germany and the 
Netherlands th at fall under tariff subheading 2004.10.00.00. The definition of the product 
under consideration was over -inclusive because it covered potato preparations that were not 
imported into Colombia, or only in very small quantities, and for which it was not cert ain 
whether they were manufactured by the domestic industry.  
7. The absence of sufficient evidence submitted by the applicant on this crucial point in its 
application, as well as in a subsequent reply to a request for clarification, should have led the 
investigating authority to conclude that the application did not provide sufficient evidence to 
justify the opening of an investigation.  
8. The European Union submits that since Article  5.3 Anti -Dumping Agreement obliges the 
investigating authority to examine  the accuracy and adequacy of the evidence provided in the 
application, MINCIT should have determined whether the definition of the product under 
consideration proposed by the applicant was appropriate and supported by the evidence.  
2.1.2 .  Lack of suffici ent evidence regarding the representativeness of the applicant  
9. The European Union considers that, at the time of the initiation of the investigation, legitimate 
doubts existed concerning the extent to which of the applicant represented the domestic 
industry, i.e. the Colombian potato -processing industry manufacturing the products "like" 
those allegedly dumped.  
10. The terms of the application did not clearly identify the producers of the "like" product and 
included potato growers among the domestic industry. The doubts thus created were not 
dispelled by an attentive reading of the Certificate Existence and Legal Representation of the 
non-profit entity FEDEPAPA.  
11. Although the European Union does not contest that the representativeness of t he applicant 
was clarified later during the investigation, and therefore raised no claim under Article  5.4 of 
the Anti -Dumping Agreement, it argues that the evidence supporting the application was 
sketchy and insufficient as regards the representativeness of FEDEPAPA.  
2.1.3 .  Lack of sufficient evidence of dumping  
12. MINCIT relied on information that FEDEPAPA carefully selected in order to support its 
allegations of dumping. Whereas information on prices of the like product in the domestic 
markets of the c ountries of origin was reasonably available to the applicant, such information 
was not submitted as it would have shown that there was no dumping within the meaning 
Article  2 of the Anti -Dumping Agreement. By accepting the information on prices of exports 
to a third country without questioning whether data on domestic sales was reasonably 
available to the applicant, MINCIT failed do discharge its duty to examine the accuracy and 
adequacy of evidence provided in the application.  
13. Colombia's  argument that Article  5.2(iii) of the Anti -Dumping Agreement should be 
interpreted as leaving the applicant free to choose to submit information relating to export 
prices in a third country, rather than relating to sales in the domestic market, is not convincing. 
The co rrect interpretation of Article  5.2(iii) is very far from the concept of "haz lo que quieras" 
(or "do as you wish") suggested by Colombia. The terms "cuando proceda" and "le cas 
échéant", just like the term "where appropriate", constrain the choice of info rmation that an 
applicant can submit to the investigating authority for the purpose of calculating the normal 
value of the product allegedly dumped at the stage of initiation. It is only "appropriate" for 
the applicant to submit information on export price s to a third country, or on the constructed 
value of the product, if in the circumstances present in each case if domestic sales of the 
product do not exist, are not representative or information on prices of domestic sales are not 
reasonably available to the applicant.  WT/DS591/7/Add.1  
 
- 26 - 
 
  14. Under Article  5.3, the role of the investigating authority is to examine the evidence submitted 
by the applicant and determine whether it is accurate, adequate and sufficient to justify the 
initiation of an investigation. In order to det ermine which evidence is adequate, guidance must 
be found in the text of Article  5.2(iii) itself and also in that of other provisions of the 
Anti-Dumping Agreement that provide context for its interpretation. The European Union 
agrees with Colombia that th e last sentence of the "chapeau" of Article  5.2 provides relevant 
context, because it clarifies that the application must only include information that is 
"reasonably applicable to the applicant". Article  2 of the Anti -Dumping Agreement also 
provides relev ant context for the interpretation of Article  5.2(iii) and, indirectly, for the 
interpretation of Article  5.3, as found by the panel in Guatemala – Cement II . Contrary to 
what Colombia alleges, there is no need for a cross reference to Article  2.2 in the t ext of 
Article  5.2(iii). The terms used in the latter provision are clearly inspired by those used in 
Article  2 and, as noted by the panel in Guatemala – Cement II , "in order to determine that 
there is sufficient evidence of dumping, the investigating auth ority cannot entirely disregard 
the elements that configure the existence of this practice as outlined in Article  2". 
15. FEDEPAPA submitted an application for anti -dumping relief on behalf of the Colombian 
domestic potato -processing industry, in which Con gelagro S.A., a subsidiary of McCain Foods, 
played a prominent role (it alone represented more than 50% of the domestic industry). It 
would have been perfectly practicable for MINCIT to require the applicant to submit 
information on sale prices in the dome stic markets of Belgium, Germany and the Netherlands. 
Even if that information had not been readily available to the applicant (quod non), a 
multinational group with the dimension and financial strength of McCain Foods could have, 
without difficulty, avail ed itself of the commercial intelligence services.  
16. An impartial and objective investigating authority should have considered that the alternative 
information on prices of exports to third countries submitted by the applicant was not adequate 
and suffic ient evidence to justify the initiation of an investigation.  
2.1.4.   Lack of sufficient evidence of injury  
17. The European Union argues that, as is apparent from the initiation decision, MINCIT relied on 
information concerning, to a large extent, the impa ct of the allegedly dumped imports on 
farmers and on the prices for fresh potatoes. This is not in line with the concept of injury in 
Article  3.1 of the Anti -Dumping Agreement, which rather requires an analysis of the impact of 
the alleged dumped imports o n prices in the domestic market for "like products " of the 
importing country and the consequent impact of these imports on the domestic producers of 
such products.  
18. MINCIT relied exclusively on the statements made by FEDEPAPA, which stressed the impact 
of the imports of frozen fries on the economic situation of Colombian potato farmers, and this 
impact played a prominent role in the initiation decision. However, at the stage of initiation, 
the examination of the adequacy of the evidence on injury must be  consistent with the 
requirements of Article  5.3, interpreted in the light of Article  5.2(iv) and Article  3.1 of the 
Anti-Dumping Agreement. MINCIT did not comply with those requirements.  
2.1.5 .  Lack of sufficient evidence of a causal link between the dumped imports and the alleged 
injury  
19. The evidence regarding the causal link, on the basis of which MINCIT took its initiation 
decision, was limited to an assertion by the applicant that "[o]wing to the low prices of the 
imported product … the domestic  product loses share compared to the European product".  
20. The European Union submits that this assertion, together with the evidence on the evolution 
of imports originating in Belgium, Germany and the Netherlands, is insufficient to establish a 
causal li nk between those imports and the alleged injury suffered by the domestic industry. It 
should be noted that, as indicated by FEDEPAPA itself, the Colombian market for frozen fries 
grew by 33% between 2014 and 2016. Moreover, Colombia does not deny that ther e were 
other sources of imports of the product, it only confirms that FEDEPAPA singled out the three 
European countries in its letter of 19  July 2017 supplementing the application.  WT/DS591/7/Add.1  
 
- 27 - 
 
  2.2.  Violation of Article  5.8 of the Anti -Dumping Agreement: MINCIT should  have rejected 
FEDEPAPA's  application  
21. The European Union maintains its consequential claim under Article  5.8 of the Anti -Dumping 
Agreement. In its view, if the Panel finds that Colombia acted inconsistently with its obligations 
under Article  5.3 by ini tiating the anti -dumping investigation on the basis of insufficient 
evidence, it should also find that Colombia acted inconsistently with its obligations under 
Article  5.8 by failing to reject the application submitted by FEDEPAPA.  
22. The European Union r elies on the Panel's  findings in Guatemala – Cement II  in which it was 
recalled that Article  5.8 makes specific reference to the rejection of an application as soon as 
the authorities conclude that there is not sufficient evidence of dumping or injury to j ustify 
proceeding with the case. The Panel linked its finding that an investigating authority should 
have considered the evidence insufficient to launch an investigation, to a subsequent 
conclusion that the authority should have rejected the application.  
23. Since the initiation of the original investigation is inconsistent with Colombia's  obligations 
under Articles  5.3 and 5.8 of the Anti -Dumping Agreement, the whole investigation procedure 
is vitiated and cannot lead to a lawful imposition of anti -dumping  duties on the subject imports.  
2.3.  Violation of Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement  
24. The European Union contends that MINCIT failed to comply with its obligations under 
Article  6.5, which aim to reconcile two competing duties of inve stigating authorities: on the 
one hand, to ensure confidential treatment of sensitive information supplied by certain parties 
and, on the other hand, to grant adequate opportunity for other parties to defend their 
interests.  
25. It is not sufficient for th e investigating authority to ask the person supplying the information 
to provide a justification for confidential treatment. The investigating authority must also 
objectively determine whether the justification provided amounts to "good cause".  
26. Moreove r, in this case, MINCIT treated the financial and commercial information provided by 
domestic producers as confidential, while disclosing similar information provided by the 
European exporters cooperating with the investigation. This undermines Colombia's  argument 
that all such information is confidential "by nature" and therefore implicitly deserves 
confidential treatment. It also reveals that MINCIT has not objectively assessed whether the 
content of the non -disclosed information could have a prejudicial effect on the transparency 
and due process interests of other parties involved in the investigation.  
27. While the European Union does not exclude that certain nominal or numerical information may 
not be susceptible of summarization without revealing sensi tive trade secrets, this is certainly 
not the case of all nominal or numerical data submitted by an applicant. It is the task of the 
investigating authority to ensure that parties provide meaningful summaries of the confidential 
information they submit (fo r example through indexation or ranges) and also that, in the 
exceptional cases where this is not possible, they provide a statement appropriately explaining 
the reasons why particular pieces of confidential information are not susceptible of summary.  
3.  CLAIMS RELATING TO THE DUMPING DETERMINATION  
28. The European Union considers that MINCIT's  entire process of determination of the dumping 
margins was fundamentally flawed. A correct application of the Anti -Dumping Agreement 
would have led the authority to terminate the investigation without imposing duties.  
3.1.  Violation of Articles  2.1, 6.8 and paragraphs 3 and 6 of Annex II of the Anti -Dumping 
Agreement: MINCIT unlawfully relied on secondary source information for its dumping 
calculation  
29. MINCIT d isregarded the truthful and complete export price data submitted by the exporters, 
and instead used secondary data from the national customs database "DIAN". Disregarding 
data submitted by the exporters in and for the purpose of the investigation is only a llowed if WT/DS591/7/Add.1  
 
- 28 - 
 
  the conditions set out in Article  6.8 of the Anti -Dumping Agreement are met. Colombia itself 
admits that this was not the case. MINCIT did not point at any time at deficiencies of the 
exporters'  primary data which would have justified the use of "facts available" – because there 
were no such deficiencies.  
30. The European Union disagrees on principle with Colombia's  position that data from a 
secondary source can be considered as constituting primary source data if it is "identical in 
essence" to the data submitted by the exporters in and for the purpose of the investigation, 
and that therefore Article  6.8 of the Anti -Dumping Agreement does not apply. On the 
contrary, the European Union considers that secondary source data will always constitute 
"facts available", even if it were fully identical to the data submitted by the exporters in and 
for the purpose of the invest igation (which it was not, in casu). Moreover, in the case at hand, 
the European  Union demonstrated that significant differences existed between the 
two datasets, both at the level of the individual transactions and at the level of the overall 
dataset, whi ch Colombia eventually acknowledged.  
31. Accordingly, the fact that MINCIT relied on the DIAN data for determining the export price 
was unlawful in respect of the conditions laid down in Article  6.8 and Annex  II of the 
Anti-Dumping Agreement. Because the e xport price was not based on the correct information 
sources and did not as such constitute a proper basis for the dumping calculations, 
MINCIT's  decision is also in breach of Article  2.1 of the Anti -Dumping Agreement.  
3.2.  Violation of Article  2.4 of the  Anti-Dumping Agreement: the comparison between domestic 
sales and export sales was conducted in an unfair manner  
32. The investigating authority failed to carry out a fair comparison between the export price and 
the normal value. In particular, it breache d its obligation to make the adjustments needed in 
order to take due account of differences affecting price comparability.  
3.2.1 . Product mix: MINCIT ignored price -relevant differences in product mixes  
33. MINCIT  knowingly ignored the differences between the product mixes sold on the domestic 
market on the one hand, and on the export market on the other hand, and refused to make 
the required adjustments, even though these differences were significant and price -relevant 
and even though the investigated exporters had requested that these crucial differences 
should be taken into consideration, and duly substantiated their request.  
34. The product under investigation covers several different subtypes, amongst others tr aditional 
fries on the one hand, potato specialties on the other hand. These two sub -types of products 
have very different physical characteristics. Accordingly, their production processes are 
different which in turn results in price -relevant product speci fications and final sales prices 
(161% for potato specialties). MINCIT's  decision to carry out neither a type -by-type 
comparison, nor to make any adjustments for these differences therefore led to significantly 
inflated dumping margins.  
35. The attempt mad e by Colombia to justify this blatant unfairness based on an allegation of 
insufficient substantiation is unconvincing. In fact, the investigated exporters proposed several 
methods to take into account the differences in product characteristics, provided e xport 
listings, which clearly distinguished between the various product types, and provided evidence 
and figures detailing the different product mixes and how they concretely affected price 
comparability. Thus, MINCIT had all the necessary information to c onduct a fair comparison. 
Furthermore, any remaining need for clarifications concerning the information submitted by 
the exporter should have been dealt with through information requests to the interested 
parties, pursuant to Article  2.4, 4th sentence – which MINCIT never made.  
36. Moreover, the European Union considers that the argument raised by MINCIT that it was not 
required to conduct a type -by-type comparison as Article  2.4 does not impose a specific 
methodology is wrong. To the contrary, Article  2.4 requires that investigation authorities who 
decide not to make a type -by-type comparison are required to do the necessary adjustments 
in a different manner – which MINCIT did not do either.  WT/DS591/7/Add.1  
 
- 29 - 
 
  37. The European Union also rejects Colombia's  argument that the e xporters allegedly submitted 
confusing and contradictory calculations in their claims for adjustment. Any divergence in 
calculations only concerns the quantification of overall price effects, which the exporters were 
not even obliged to submit in order to substantiate their claim, and which resulted from the 
fact that MINCIT did not upfront indicate how it would structure the comparison for the 
different product types (which it was obliged to do).  
3.2.2.  Packaging  
38. MINCIT also breached the fair compariso n requirement, because for Mydibel it included the 
packaging costs in the normal value but deducted them from the export price, thereby 
unlawfully inflating the dumping margin. The European Union rejects Colombia's  assertion that 
what was deducted from the  export price was merely the "additional overseas packaging 
costs" and not regular packaging costs. This argument is contradicted by the detailed 
explanations provided by Mydibel to MINCIT, and submitted by the European Union in these 
panel proceedings, wh ich convincingly show that the deduction concerned the full normal cost 
of packaging.  
3.2.3.  Types of oil  
39. MINCIT also ignored Agrarfrost's  request for an adjustment concerning the types of oil used 
for the preparation of the potato product (products fo r the domestic market are mostly 
pre-fried in the more expensive sunflower oil at the request of the customers, whereas the 
export product is pre -fried in cheaper types of oil). This adjustment alone would have lowered 
Agrarfrost's  dumping margin below the  de minimis threshold.  
40. Colombia's  position that the request was ignored by MINCIT because of a lack of substantiation 
is not convincing and should be rejected. The exporter provided extensive explanations on the 
price-relevance of the type of oil used,  and the different usages on the domestic and export 
market, respectively. All data substantiating the request was submitted as early as with 
Agrarfrost's  questionnaire replies; relevant invoices were submitted in writing during the 
investigation and the f ull body of relevant evidence was verified at MINCIT's  verification visit 
to Agrarfrost's  premises. This is explicitly stated in MINCIT's  own verification report, and 
explained in more detail in Annex 9 to this report, which the report endorses, contrary t o 
Colombia's  implausible assertions.  
3.2.4.  MINCIT failed to specify necessary information and imposed an unreasonable burden of proof  
41. By simply ignoring the requests for adjustments raised by the investigated exporters, without 
raising any specific questions or giving any indication of further explanations or information it 
would have required, MINCIT also failed to engage in the "constr uctive dialogue" on requested 
adjustments which is required under Article  2.4 of the Anti -Dumping Agreement.  
4  CLAIMS RELATING TO THE INJURY AND CAUSATION DETERMINATION  
4.1.  Colombia has acted inconsistently with its obligations under Article  3.1, 3.2, 3 .4 and 3.5 of 
the Anti -Dumping Agreement by wrongfully including non -dumped imports  
42. In its analysis of injury and causation, MINCIT wrongly included both:  
• Imports which were found not to have been dumped in that they were found to have 
negative dumping margins; and  
• Imports that were found to have dumping margins below the de minimis  threshold and in 
respect of which no anti -dumping duty was imposed.  
43. The European Union considers that, by including these imports in its injury analysi s, MINCIT 
committed an overarching error of law which permeated and contaminated the entirety of the 
injury and causation analysis, as one is consequential upon the other.  WT/DS591/7/Add.1  
 
- 30 - 
 
  44. Specifically, for the purposes of its assessment of injury, MINCIT relied upon d ata allegedly 
showing the comparative performance of different economic indices as between a "reference 
period" and a "critical period". Those periods are not of equal duration. However, since the 
figures that MINCIT relies upon have been distorted by the overarching error described above, 
the findings are not based on "positive evidence" within the meaning of Article  3.1 of the 
Anti-Dumping Agreement and the assessment lacked the requisite objectivity. This breach 
gives rise in turn to consequential violat ions of Articles  3.2, 3.4 and 3.5 of the Anti -Dumping 
Agreement.  
45. With respect to the inclusion of imports, which were found to have a negative dumping margin, 
Colombia has at the least implicitly acknowledged that this was an error. However, it contend s 
that this is not material. This attempt to downplay the amplitude of this error and the 
consequences that it bears for the validity of the entire injury analysis should be rejected.  
46. The data forms the foundation for the entire logical progression of the injury analysis. Hence, 
any error with respect to the scope of the imports that may legitimately form part of an injury 
analysis undermines the entire inquiry and the ultimate findings of causation and injury.  
47. Colombia tries to justify the inclusio n of imports that were found to be below the de minimis  
threshold by inviting the Panel to find that it applied a permissible interpretation of the term 
"dumped imports".  
48. The European Union disagrees. The interpretation for which Colombia advocates wou ld run 
against the logical structure of the Anti -Dumping Agreement as a whole, would undermine the 
function of Article  5.8 of the Anti -Dumping Agreement and in particular defeats the purpose 
of the procedural guarantees that are to be afforded throughout a n investigation. Indeed, the 
existence of an investigation is the precondition for the conduct of an injury analysis and for 
any consequential finding. It should not be possible to revive imports which have or which 
ought to have been excluded from an inve stigation for the sole purpose of demonstrating 
injury and causation. Once the condition set down in Article  5.8 of the Anti -Dumping 
Agreement for the immediate termination of an investigation is met, the relevant imports (in 
this case those imports for wh ich a de minimis  margin of dumping was found) can no longer 
legitimately form any part of an analysis relied upon to establish injury or causation.  
49. The European Union emphasises that this interpretation is supported by multiple reports of 
the Appellate  Body and other Panels.  
50. Moreover, this issue is not one which can be left open to an ambiguous or dual interpretation. 
Either imports found to be "de minimis" within the meaning of Article  5.8 of the Anti -Dumping 
Agreement may be treated as "dumped imp orts" or they may not.  
4.2.  Colombia acted inconsistently with its obligations under Article  3.1 and 3.2 of the 
Anti-Dumping Agreement by relying on flawed analysis of the effect of the dumped imports 
on prices in the domestic market for the like product  
51. First, the European Union contends that the data relied upon by MINCIT to establish "trends" 
for the purpose of its price effects analysis was over -inclusive, because it included 
"non-dumped" imports. Thus, all subsequent findings related to al leged price effects based on 
this data fail to meet the conditions laid down in Article  3.1 of the Anti -Dumping Agreement, 
as they are not sustained by positive and objective evidence.  
52. Second, the European Union has demonstrated that the methodological  approach followed by 
the investigating authority for its effects analysis is deficient. Aside from the error relating to 
the data, MINCIT also failed to ensure price comparability or to properly assess the effects on 
domestic prices.  
53. Whereas domestic prices were assessed in terms of their "real implicit price", there is no 
equivalent analysis of the price of imports. Colombia has engaged in semantic arguments 
claiming that it 'juxtaposed' rather than compared trends. This does not suffice to justify th e 
lack of equivalence between the data as regards domestic prices (real implicit price) and the 
data as regards the price of imports (FOB price). There is a degree of comparison in the WT/DS591/7/Add.1  
 
- 31 - 
 
  analysis relied upon and that implies that the data had to be objective ly comparable. The 
European Union reiterates that this lack of equivalence undermines the objectivity of the entire 
price effects analysis.  
4.3.  Colombia has acted inconsistently with its obligations under Article  3.1 and Article  3.4 of the 
Anti-Dumping A greement by failing to evaluate all relevant economic factors and indices when 
concluding there was material injury to the domestic industry  
54. The European Union's  position is that MINCIT's  analysis of the impact of the allegedly dumped 
imports on the do mestic industry falls short of the legal standard as it did not include all 
relevant economic factors and indices having a bearing on the state of the industry, but instead 
focused on only seven of the fifteen economic factors and indices.  
55. Furthermore,  the methodology applied by MINCIT throughout the course of this analysis was 
significantly flawed. MINCIT's  calculation of the averages in respect of each of the economic 
variables set down in its Final Technical Report was inappropriate, as these average s were 
calculated based on periods of different durations (for the "reference period" on the one side, 
and for the "critical period" on the other side). This method has a distortive effect and does 
not reflect fluctuations in data adequately. This is not r esolved by describing six monthly data 
points in addition to the averages; a bare description of the movement of data without any 
proper evaluation falls short of the standard imposed by Article  3.4 of the Anti -Dumping 
Agreement. There was no attempt to an alyse the relevance of significant movements in the 
data which occurred in the reference period. Moreover, it is sufficient to read the Final 
Determination and Final Technical Report to understand that it was the averages that were 
considered determinative . 
56. In addition, Colombia has failed to explain why MINCIT did not attach any importance in its 
analysis to factors, which showed trends favorable for the domestic industry. Such factors, 
given that they supported the position that the domestic industry did not suffer any material 
injury should have been thoroughly assessed. Conversely, and at the least implicitly, MINCIT 
placed significant emphasis on factors that did substantiate the existence of a material injury. 
The absence of any explanation as to t he reasons why certain factors were ascribed more 
weight than others in the overall analysis of the existence of a material injury demonstrates 
that MINCIT failed to conduct an "objective" examination of the different factors and indices.  
57. The European Union emphasises the need for the Panel to focus on the documents on record 
rather than on the new reasoning that has been developed in Colombia's  submissions.  
4.4.  Colombia has acted inconsistently with its obligations under Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement by failing to demonstrate a causal link between dumped imports 
and injury to the domestic market  
58. The European Union contends that Colombia's  causation determination is inconsistent with 
Article  3.5 and 3.1 of the Anti -Dumping Agre ement, since it builds upon the findings of an 
injury analysis, which suffered itself from significant shortcomings, as stated above.  
59. Furthermore, the European Union underlines that MINCIT failed to separate, distinguish and 
adequately analyse all rele vant non -attribution factors, and in particular the impact of 
"non-dumped" imports. In particular, the impact of those imports in respect of which either a 
negative dumping margin or which in respect of which the dumping margin was found to be 
de minimis  should have been assessed as a non -attribution factor.  
60. Again, the European Union urges the Panel to disregard new elements of analysis that have 
been brought to the table by Colombia during the legal proceedings, as they do not form part 
of MINCIT's  assessment during the investigation, and remain unsubstantiated.  
61. Finally, MINCIT  also failed to demonstrate the existence of the alleged causal link. It simply 
relied on the correlation between the alleged injury and the allegedly dumped imports. This is 
insufficient to meet the legal standard.  WT/DS591/7/Add.1  
 
- 32 - 
 
  5  CONCLUSIONS  
62. For the reasons set out above, the European Union requests the Panel to find that:  
- Colombia has acted inconsistently with its obligations under Article  5.3 of the Anti -Dumping 
Agreement by initiating the anti -dumping investigation on the basis of insuffici ent evidence 
of dumping, injury and a causal link between the dumped imports and the alleged injury ; 
- Colombia has acted inconsistently with its obligations under Article  5.8 of the Anti -Dumping 
Agreement in failing to reject the application submitted by FE DEPAPA, which did not include 
sufficient evidence to justify proceeding with the investigation ; 
- Colombia violated Article  6.5 of the Anti -Dumping Agreement by providing confidential 
treatment on its own initiative to the information supplied by the applica nt, without good 
cause having been shown ; 
- Colombia acted inconsistently with its obligations under Article  6.5.1 of the Anti -Dumping 
Agreement by failing to require the applicant to furnish non -confidential summaries in 
sufficient detail to permit a reason able understanding of the substance of the information 
submitted in confidence, or by failing to require a statement of reasons in support of a claim 
that the information was not susceptible of summary ; 
- Colombia violated Articles  2.1, 6.8 and paragraphs 3 and 6 of Annex II of the Anti -Dumping 
Agreement, by not using, in the calculation of the dumping margins, the information on 
export prices provided by the cooperating investigated companies, but instead, information 
from its customs database (DIAN);  
- Colomb ia violated Article  2.4 of the Anti -Dumping Agreement by not making due allowances 
for differences impacting price comparability (differences in product mix and differences in 
oil used in the preparation), by making undue adjustments (for packaging costs),  and by not 
informing interested parties about the information required for the fair comparison;  
- Colombia violated Articles  3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping agreement by 
wrongfully including non -dumped imports;  
- Colombia violated Article  3.1 and Ar ticle 3.2 of the Anti -Dumping Agreement by not 
conducing an objective examination, based on positive evidence, by failing to properly 
establish the effect of the dumped imports on prices in the domestic market for the like 
product and by failing to adequat ely justify its findings;  
- Colombia violated Article  3.1 and Article  3.4 of the Anti -Dumping Agreement by not 
conducting an objective examination, based on positive evidence, by failing to properly 
consider all relevant economic factors and indices having a  bearing on the state of the 
industry and by failing to adequately justify its findings; and  
- Colombia violated Article  3.1 and Article  3.5 of the Anti -Dumping Agreement by not 
conducting an objective examination, based on positive evidence, by failing to d emonstrate 
a causal link between the dumped imports and the injury to the domestic industry and by 
failing to adequately justify its findings.  
63. The European Union further  requests, pursuant to Article  19.1 of the DSU, that the Panel 
recommends that Colo mbia bring its measures into conformity with the GATT  1994 and the 
Anti-Dumping Agreement.  
 WT/DS591/7/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA* 
1  THE EUROPEAN UNION'S CLAIM UNDER ARTICLE  5.3 OF THE ANTI -DUMPING 
AGREEMENT ON CERTAIN ASPECTS OF THE INITIATION OF THE INVESTIGATION SHOULD 
BE REJECTED  
1.1.  The European Union makes five arguments under Article 5.3, claiming that the investigation 
was initiated incorr ectly. Each of these five arguments are baseless in law and in fact and should be 
rejected.  
1.1  The European Union's arguments concerning the definition of the product under 
investigation have no legal basis  
1.2.  The European Union's first argument is th at the definition of the product under investigation, 
that is to say, the product imported from the European Union to Colombia, is "over -inclusive".1 This 
argument should be rejected because it has no legal basis in the Anti -Dumping Agreement. 
Moreover, t he European Union's argument completely undermines the logic of an anti -dumping 
investigation.  
1.3.  The basis of the European Union's complaint, Article 5.3, requires sufficient evidence to justify 
the initiation of an investigation. The evidence to be ex amined by the investigating authority is 
evidence of dumping, injury  (or threat thereof) and a causal link . The case law under Article  5.3 
confirms this, for instance, the panel in Mexico – Steel Pipes and Tubes .2 In contrast, a complainant 
party cannot c hallenge under Article 5.3 the definition of the product under consideration  (the 
product "concerned"). Article 5.3 contains no such provision. Rather, Article 5.3 presumes an earlier 
definition of the product under investigation. All the evidence relating  to dumping, injury and 
causation examined under Article 5.3 depends on, derives from and is based on that definition.  
1.4.  More generally, there is no provision in the Anti -Dumping Agreement that defines the "product 
under consideration". This principle has already been confirmed by several panels. For instance, the 
panel in Korea – Certain Paper  found that it was "aware of no provision in Article  2.6, or any other 
article  in the Agreement, that contains a definition of 'the product under consideration' i tself".3 The 
panel in  EC – Salmon  (Norway)  reached the same finding, just as the European Union itself argued 
in that dispute.4 
1.5.  Hence an investigating authority enjoys a considerable degree of discretion with regard to how 
to define the product und er consideration, and this definition cannot be directly challenged. Rather, 
the disciplines of the Anti -Dumping Agreement focus on the definition of the "like" product, under 
Article 2.6, which must reflect the product under consideration selected by the investigating 
authority.5 
1.6.  The European Union's argument based on Article 5.3, under the rubric of "evidence" for 
initiating an investigation, is in fact tantamount to introducing, through the "back door", 
requirements under the Anti -Dumping Agreemen t that several panels have already found do not 
exist. The European Union has argued that the definition of the product under consideration was 
allegedly "over -inclusive"6 or encompassed "a range of products that was wider than the range of 
'like' product s manufactured by domestic producers".7 But regardless of how it is labelled, the 
 
* In Spanish original language.  
1 European Union's first written submission, para. 51.  
2 Panel Report, Mexico – Steel Pipes and Tubes , para. 7.21. (emphasis added)  
3 Panel Report, Korea – Certain Paper , para. 7.221.  
4 See for example Panel Report, EC – Salmon  (Norway) , para. 4.240.  
5 Panel Report, EC – Salmon (Norway) , para. 7.51 et seq.  
6 European Union's first written submission, para. 51. European Union's opening statement at the first 
meeting of the Panel, para. 9.  
7 European Union's response to Panel question No.  12.1, para.  6. WT/DS591/7/Add.1  
 
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  rationale behind the European Union's complaint remains the same. Accordingly, the Panel should 
reject the European Union's arguments.  
1.7.  In any event, there is no logica l link between the applicant's obligation to provide information 
on the product it produces (evidence) and the alleged rule freely invented by the European  Union. 
If the Subdirectorate had initiated the investigation using a product under consideration tha t 
contained only exactly the models produced by the domestic industry – as the European Union would 
like – the European Union would probably be satisfied and would not claim any violation of Article  5.3 
and/or 5.2(i). However, this outcome would occur with out any change in the evidence submitted by 
the applicant. That is to say that what would have changed in our hypothetical case would not be 
the evidence, but the decision of the Subdirectorate on the scope of the product under consideration.  
1.2  The Euro pean Union's arguments regarding the representativeness of Fedepapa 
should be rejected  
1.8.  The European Union advances two distinct arguments as to why Fedepapa  could not be 
considered the legitimate representative of the domestic industry. For both arguments, the 
European  Union explicitly relies on the text of Article 5.4, using almost exactly the same words as 
are used in Article 5.4. However, the European Unio n bases its claim on Article  5.3, purporting to 
rely on the text of Article 5.3, which refers to the "evidence" provided "in the application", the 
"accuracy and adequacy" of which the investigating authority must examine. Nevertheless, 
Article  5.3 deals wi th substantive  evidence, provided "in the application", and not with who submits 
an application on whose behalf.8 Thus, the European Union's claim should be rejected because its 
legal basis is incorrect.  
1.9.  On the substance, the European Union first claims that "at the time of initiation, it was not 
clear whether the companies expressly supporting the application represented at least 25% of the 
total production of the like product produced by the domestic industry".9 But the Subdirectorate 
responded to various arguments of this nature already during the investigation. The petitioning firms 
account for 69% of domestic production. This, of course, exceeds the minimum threshold of 25% in 
support of the application. This also meets the requirement t hat 50% of firms must express support 
or opposition. This assertion by the European Union is therefore without merit.  
1.10.   There is also considerable confusion in the European Union's arguments, given that it admits 
that "ultimately, the application was expressly supported by domestic producers accounting for at 
least 25% of total production of the like product produced by the domestic industry".10 Colombia 
does not understand how the European  Union can accept the Subdirectorate's determination as 
correct , while claiming at the same time that the Subdirectorate did not have sufficient information 
before it. The legality of the Subdirectorate's decision is based on the information that the authority 
had before it.  
1.11.   According to its second argument, th e European Union seeks to interpret Colombian law by 
questioning whether the industry association, Fedepapa, represented, in a legitimate manner in 
accordance with Colombian law, the petitioning firms. According to the European Union, the 
Certificate of Ex istence and Legal Representation "did not indicate ... that potato -processing 
companies could be members of the Colombian federation of potato growers".11 
1.12.   The Panel should reject this extraordinary argument made by the European  Union. The 
Anti-Dumpi ng Agreement in no way limits the entities which, under domestic legislation, are 
empowered to represent petitioning firms, nor the manner in which those firms wish to be 
represented. Therefore, it is entirely at the discretion of each Member to determine which entity, 
under which legal and factual conditions, is authorized to represent the petitioning firms in 
accordance with domestic legislation. This is the sovereign right of every Member and Colombia 
firmly rejects any attempt by a complainant party to impose its preferences (or its national practice) 
on the Colombian authorities.  
 
8 See the case law cited  by Colombia in its response to Panel question No. 1.9, paras. 29 -32. 
9 European Union's first written submission, para. 56.  
10 European Union's responses to the Panel's questions, para. 19.  
11 European Union's first written submission, para. 57.  WT/DS591/7/Add.1  
 
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  1.13.   Second, under Colombian regulations, the Subdirectorate was fully empowered to accept 
communications from Fedepapa, in Fedepapa's capacity as the representative of the p etitioning 
firms. Colombia does not know which legal basis – in both Colombian law and the Anti -Dumping 
Agreement – the European Union is using to argue that Fedepapa was not so empowered.  
1.14.   The Subdirectorate responded to various arguments of this na ture already during the 
investigation. For instance, in its responses to certain comments made by the European Commission 
during the investigation, the Subdirectorate referred to sub -paragraph "k" of Fedepapa's Certificate 
of Existence and Legal Representa tion.12 Nor has the European Union provided any evidence that 
the petitioning firms were not members of Fedepapa. Colombia does not understand why the 
European Union believes that a national association cannot represent its members before a Member 
State's authorities.  
1.15.   If the European Union now wishes to challenge the investigating authority's approach, the 
European Union must demonstrate that the investigating authority exceeded its margin of discretion 
which, as the European Union itself accepts13, it enjoys under domestic legislation. But obviously, 
there is nothing manifestly incorrect in finding that a potato industry association can represent, in 
an administrative process, producers not only of raw potatoes, but also producers of frozen potatoes.  
On the contrary, this is intuitive and reflects common sense, especially given that these producers 
were members of Fedepapa. More generally, Colombian producers could have requested 
representation by any entity that they considered suitable, for example,  a law firm, a consulting 
firm, etc. Of course, it would not be reasonable to require that a panel verify and interpret the 
certificate of legal representation of each representing entity.  
1.16.   As a last point in this regard, the three Colombian companie s represented by Fedepapa 
cooperated assiduously with Fedepapa during each phase of the investigation. The companies also 
communicated with the Subdirectorate and sent their individual data not only through Fedepapa, 
but also directly, to complete the appl ication that Fedepapa had sent on behalf of these companies.14 
The European Union effectively requests the Panel to tell these companies that their representation 
by Fedepapa did not take place.  
1.3  The European Union's arguments regarding evidence of nor mal value should be 
rejected  
1.17.   The European Union challenges the Subdirectorate's use of export prices from Germany, 
Belgium and the Netherlands to the United Kingdom as the normal value source. The European  Union 
insists that the applicant and the Su bdirectorate did not justify the use of these prices, instead of 
the selling price on the European market. The European Union contends that the words "where 
appropriate" in Article 5.2(iii) mean that the hierarchy of methods for determining normal value 
under Article 2.2 also applies in the context of initiation.  
1.18.   This cannot be correct, as it would essentially be impossible to conduct the investigation under 
Article 2.2 in the context of initiating the investigation. It is clear that, at the initiati on stage, the 
test foreseen under Article 2.2 cannot be applied in the same way as during the investigation. To 
argue otherwise would turn the initiation analysis into a full -fledged investigation.  
1.19.   Rather, the words "where appropriate" are best unde rstood as leaving to the discretion of the 
applicant, as well as of the investigating authority when revising an application, to select what it 
considers to be the most "appropriate", that is to say, "reasonable" or "suitable", source of normal 
value data.  By including the phrase "where appropriate", the authors of the Agreement indicated 
that using the export price to a third country as the normal value does not depend on the hierarchy 
in Article 2.2, but rather it depends on the applicant's criterion of w hat is "appropriate", "relevant", 
pertinent, available, etc. in the light of the information that is available to the applicant in their 
particular circumstances.  
1.20.   The words " cuando proceda " in the Spanish version mean exactly the same as the English  
phrase "where appropriate". Moreover, the use of the subjunctive tense in the Spanish phrase 
("proceda " instead of " procede ") further highlights the applicant's subjective discretion. The French 
 
12 Response to comments on the Essential Facts Report, (Exhibit EU -17), p. 10.  
13 European Union's response to Panel question No.  1.4, para.  13. 
14 Colombia's second written submission, para. 2.24.  WT/DS591/7/Add.1  
 
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  locution " le cas echéant " means the same as the Spanish and English expressions. This phrase is 
synonymous with the words " éventuellement " ("possibly"), " à l'occasion " ("when"), " si l'occasion se 
présente " ("should the opportunity arise").15 Therefore, the applicant has the right to submit, for 
instance, information or data on an export price to a third country "should the opportunity arise", 
that is to say, if the applicant has such information and should the applicant consider it proper and  
appropriate to submit that information. This confirms that information on the export price to a third 
country may be freely submitted, in its own right, and not as an "emergency solution" to remedy 
the lack of domestic market prices.  
1.21.   There are thre e normal value sources: (i) domestic market prices, (ii) export prices to third 
countries and (iii) the cost of production. They are all legitimate normal value sources which could, 
ultimately, be used as a basis for normal value depending on how the inves tigation evolves. Nothing 
in Articles 5.2 and 5.3 precludes using evidence relating to third country prices in an application. 
The applicant and the authority, therefore, can rely on data from any of the three sources, provided 
that the data are "adequate"  and "accurate", and provided that they are deemed "appropriate" for 
that purpose (Article 5.3).  
1.22.   Data are not inadequate or inaccurate, or allegedly not "appropriate", just because they come 
from one market and not another. Data would only be inadeq uate or inaccurate if they did not permit 
a proper comparison, for instance, for the reasons discussed by the panel in Guatemala – Cement  II. 
Colombia points out that the European Union has not argued that the data used by the 
Subdirectorate are flawed in this way.  
1.23.   If the third country export market data suggest dumping, and there is no information or 
contradictory data from another market, the authority must still have the right to initiate an 
investigation on that basis. The authority cannot automa tically assume, nor can it be required to 
assume, that domestic market data are "better" or inherently more reliable than third market sales 
data. Of course, all of these considerations are taken into account only for the purposes of initiating 
the investi gation. During the investigation, the authority will, of course, first seek to obtain the 
normal value of sales in the domestic market, on the basis of the requirements enumerated in 
Article  2.2. In fact, in this investigation, the Subdirectorate used dome stic selling prices for the final 
determination and found dumping.  
1.24.   The phrase "where appropriate" cannot mean that the authority is required to request an 
explanation from the applicant as to why it did not submit price data for the domestic market of the 
exporting country. The applicant could simply respond that it does not have access to those prices, 
because they are unavailable, they are confidential, etc. If such a request from the authority and 
such a response from the applicant were in themsel ves – and without being extensively examined 
by the authority – sufficient to satisfy the alleged obligation arising from the words "where 
appropriate", it would be an empty formality.  
1.25.   Nor can the phrase "where appropriate" mean that an authority an d a WTO panel must decide 
whether the applicant made enough of an effort to obtain domestic market data. This judgement 
could not be objective or pragmatic. The European Union cites the fact that Congelagro, one of the 
Colombian petitioning firms, is relat ed to the McCain company, which is active in the German and 
Dutch markets.16 The European Union claims that, for this reason, "the information on sale prices in 
the domestic markets of [Germany and the Netherlands] could have been collected easily and 
provided with the application".17 The European Union's example only serves to substantiate 
Colombia's argument. The mere fact that two companies are related says absolutely nothing about 
the possibility that one may obtain information from the other. Two compa nies, even if they are 
related, can have diametrically opposed  commercial considerations.  
1.26.   If it is assumed that the phrase "where appropriate" requires some sort of explanation or 
explicit query, the obligation on the applicant and the authority would have to be much less onerous. 
For instance, a requirement could be envisaged whereby the applicant and the investigating 
authority should consider and explain whether third market data are "appropriate" or "adequate" to 
be used as evidence of the normal value, in the particular circumstances in question.  
 
15 https://dictionnaire.lerobert.com/definition/echeant . 
16 European Union's response to Panel question No.  12.2, para.  28. 
17 European Union's response to Panel question No.  12.2, para.  28. WT/DS591/7/Add.1  
 
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  1.27.   Even within that understanding of the term "where appropriate", the investigation initiation 
was consistent with Article 5.3. The Subdirectorate stated that the United Kingdom market was the 
largest single market for fries within the EU single market (at that time) and, as such, was a 
particularly suitable parallel.18 Moreover, in its application, with regard to the normal value 
calculation, the applicant included as an annex the initi ation decision of the Brazilian investigating 
authority in its frozen potatoes anti -dumping investigation, which asserted that the 
Brazilian  applicant was unable to obtain the domestic price internally within the relevant 
European  Union member States, but was able to obtain information on prices in the United  Kingdom 
through the Eurostat service. Thus, the reference to "other requests" in the Subdirectorate's decision 
should be understood as a reference to the Brazilian authority's explanation in the Brazil ian case. 
This annex forms part of the documents that Colombia has submitted to the Panel.19 The 
Subdirectorate relied on this information essentially in the same way as the Brazilian authority 
Therefore, under any interpretation of Articles 5.2 and 5.3, t he applicant and the Subdirectorate 
acted consistently with the Anti -Dumping Agreement.  
1.28.   There are several investigating authorities that, under the same circumstances as the 
Subdirectorate, proceeded in the same manner. Colombia has identified examp les of the practice of 
the investigating authorities of the Eurasian Economic Union, South Africa, and Turkey. These 
authorities use either the constructed normal value or the export price to a third country, without 
examining or explaining why they did no t base the normal value on the domestic market price.  
1.29.   In conclusion, as the complainant in these proceedings, the European Union bears the burden 
of establishing that it was not "appropriate" for the Subdirectorate to rely on this evidence. The 
European Union has failed to meet this burden. In addition, the fact that the authority did not rely 
on United Kingdom prices as the basis for normal value at the end of the investigation does not 
mean that using these prices as evidence for initiating it was not appropriate.  
1.4  The European Union's arguments regarding evidence of injury should be rejected  
1.30.   The European Union claims that the Subdirectorate relied on information processed by 
Fedepapa and that said data covered – inappropriately – both th e potato -processing industry 
(i.e. the producers of the frozen potatoes under investigation), as well as the producers of fresh 
potatoes.20 
1.31.   There are two problems with the European Union's claim. First, the European Union's claim is 
based on a misun derstanding of the facts. For its material injury analysis, the Subdirectorate relied 
exclusively on the relevant data for producers of the product under investigation , that is to say, 
producers of frozen pre -cooked potatoes (sometimes referred to as the " potato -processing 
companies"). The European Union's assertion that the underlying data included producers of fresh 
potatoes is factually incorrect.  
1.32.   The only evidence cited by the European Union in support of its incorrect assertion is the 
Initiation  of Original Investigation21 and the comments made by the European Commission during 
the investigation. But the Initiation of Original Investigation, by itself and even more when read in 
conjunction with the Technical Report on Initiation and Fedepapa's ap plication, demonstrate that the 
European Union has mischaracterized the facts of the case and the underlying data. The Initiation 
of Original Investigation mentions potato producers because, ultimately, and in a productive 
environment as fragile as the Col ombian countryside, potato farmers are also victims of the injury 
caused to the local processing industry by the sale in Colombia of dumped imported frozen potatoes. 
Therefore, in certain circumstances, the Subdirectorate considers it appropriate, for the purposes of 
initiating an investigation, to also mention or give a general assessment of the interests of other 
economic sectors related to the product under investigation. This is similar to the European Union's 
"Union interest" test.  
1.33.   The second pr oblem is that the European Union focuses on the Subdirectorate's analysis, 
instead of focusing on the evidence that existed in the record when the investigation was initiated. 
Article 5.3 requires that, at the time of initiation, there is  sufficient eviden ce of the three key 
 
18 Initiation of Original Investigation, (Exhibit EU -1b), p. 9.  
19 Exhibit COL -35-B, pp. 6 -42 (folios 90 -126).  
20 European Union's first written submission, para. 59.  
21 See European Union's first written submission, fns 92 and 93.  WT/DS591/7/Add.1  
 
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  elements22, namely dumping, injury and a causal link. In contrast, Article 5.3 does not require an 
analysis by the investigating authority, nor does it impose requirements on the characteristics of 
such an analysis. The panel in EC – Bed Linen  found that Article  5.3 says nothing regarding the 
nature of the examination to be carried out. Nor does it say anything requiring an explanation of 
how that examination was carried out .23 This interpretation was confirmed by the panels in 
Mexico  – Steel Pipes and Tubes24 and in Mexico – Corn Syrup .25 
1.34.   Lastly, Colombia trusts it is clear that the evidence the authority had before it at the time of 
initiation is that contained in Fedepapa's application of 22  June 2017 and its revised application  
(and the annexed documents) of 19  July 2017.26 These documents contain all the relevant evidence 
for establishing the existence of injury and causation for initiation purposes. This evidence speaks 
for itself. The European Union has failed to present any arguments that allege this evidence was 
insufficient to justify the initiation of the investigation.  
1.35.   In the final phase of this dispute, the European Union has argued that Colombia supposedly 
submitted certain exhibits too late in the course of the proceedings to be able to rely on this 
evidence.27 But Colombia never submitted these documents to rely on them as part of its arguments. 
Rather, Colombia submitted these documents because the Panel asked Colombia to provide them .28 
Colombia did not need t o rely on the evidence in the record, precisely because the 
European  Union  – thanks to its incorrect legal approach under Article 5.3 – never claimed that there 
was insufficient evidence in the record, but focused (incorrectly) on the opening statement and  the 
explanation contained therein. In addition, the European Union decided to submit its complaint for 
the first time on 1  February  2022. But Colombia submitted Exhibits COL -35 and COL -36 in its 
responses of 17  September  2021, four and a half months earli er. The European Union's second 
written submission of 29  October  2021 would have been a logical moment for advancing this 
argument. But the European Union never raised this concern.  
1.5  The European Union's arguments regarding evidence of a causal link should be 
rejected  
1.36.   The European Union also puts forward an argument, in the context of initiation under 
Article  5.3, regarding an alleged absence of evidence of a causal link.  
1.37.   In the first phase of these proceedings, the European Union a rgued that the Subdirectorate's 
analysis was not sufficient, as there was no "separate analysis" of the existence of a causal link in 
the initiation decision. Colombia responded that the presence or absence or the quality of "a separate 
analysis" is not th e criterion under Article 5.3. Article 5.3 requires that, at the time of initiation, 
there is  sufficient evidence of the three key elements29, namely dumping, injury and a causal link. 
In contrast, Article 5.3 does not require the investigating authority t o perform an analysis, nor does 
it set out requirements for the characteristics of such an analysis. The panel in EC – Bed Linen  found 
that Article  5.3 says nothing regarding the nature of the examination to be carried out. Nor does it 
say anything requiri ng an explanation of how that examination was carried out .30 This interpretation 
was confirmed by the panels in Mexico – Steel Pipes and Tubes31 and in Mexico – Corn Syrup .32 The 
European Union's legal error is similar to its legal error under the matter of injury.  
1.38.   In any event, Colombia is of the opinion that the Subdirectorate's analysis in the 
Technical  Report on Initiation and in the Initiation of Original Investiga tion is sufficiently clear and 
rigorous to meet any requirement for an explanation.  
1.39.   After the first meeting with the Panel, the European Union changed its argument, abandoning 
the argument of the absence of a "separate analysis" and claiming that th ere was insufficient 
 
22 Panel Report, Mexico – Steel Pip es and Tubes , para.  7.21. 
23 Panel Report, EC – Bed Linen , para. 6.198.  
24 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.21. 
25 Panel Report, Mexico – Corn Syrup , para. 7.102.  
26 Colombia's response to Panel question No. 1.17, paras. 87 -97. 
27 European Union's response to Panel question No.  12.9, paras.  30 et seq.  
28 Panel question No. 1.1.  
29 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.21. 
30 Panel Report, EC – Bed Linen , para. 6.198.  
31 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.21. 
32 Panel Report, Mexico – Corn Syrup , para. 7.102.  WT/DS591/7/Add.1  
 
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  evidence in the record, under Article 5.3. However, this means that the European Union has failed 
to make a prima facie  case when required, i.e. in its first written submission or, at the latest, at the 
first meeting. The European  Union should have focused – in its first written submission – on the 
evidence that was before the Subdirectorate, and should have explained how that evidence was 
deficient or insufficient to demonstrate the existence of a causal link for the purposes of initia tion. 
Colombia therefore requests that the Panel reject the European Union's claims for having failed to 
make a prima facie  case. 
1.40.   In the event that the Panel should decide to examine the merits of the European  Union's 
arguments, Colombia is of the v iew there was sufficient information before the Subdirectorate at the 
time of initiation. The application also contained specific and precise information on imports from 
the countries under investigation and on the specific mechanism through which the dome stic 
industry would allegedly suffer injury as a result of the imports. Colombia also wishes to point out 
that the "evidence" with respect to the causal link – especially for the purposes of initiation – often 
does not consist of separate documents that ad dress the issue of "causation". Rather, the "evidence" 
is the investigating authority's interpretation of the import data and information on the state of the 
domestic industry. In other words, the "evidence" of a causal link is really the import data and t he 
relevant data for the determination of injury and of the market as a whole, and the investigating 
authority's analysis of these and the connection it makes between them. Therefore, it is not very 
useful to look for "evidence" of a causal link in the sen se of looking for documents that are separate 
and distinct  from those pertaining to injury, the level of imports, etc. Rather, the same documents 
and the same data can demonstrate both injury and causation.  
2  THE EUROPEAN UNION'S CLAIM UNDER ARTICLE  5.8 R EGARDING THE INITIATION OF 
THE INVESTIGATION SHOULD BE REJECTED  
2.1.  The European Union also brings a claim under Article 5.8 of the Anti -Dumping Agreement. This 
claim is purely consequential, as the European Union bases it on the alleged "consequence of the 
lack of evidence" to justify the initiation decision. Given that the European Union's claim under 
Article  5.3 is baseless in fact and in law, Colombia also requests the Panel to reject the 
European  Union's consequential claim under Article 5.8.  
2.2.  The European Union acknowledges the recent panel findings in Morocco  – Definitive 
AD Measures on Exercise Books (Tunisia)33, according to which a finding of violation under Article  5.3 
cannot, automatically, result in a finding of violation of Article 5.8. Instead, a finding of violation 
under Article 5.8 must be based on different or additional circumstances. The European Union does 
not explain why the Subdirectorate allegedly violated Article 5.8 and how this violation relates to the 
alleged violation of A rticle 5.3.  
3  THE CLAIMS RELATING TO CONFIDENTIALITY UNDER ARTICLES 6.5 AND 6.5.1 OF THE 
ANTI -DUMPING AGREEMENT SHOULD BE REJECTED  
3.1.  The European Union complains that certain information was "heavily redacted"34 in section d(i) 
of the revised applicat ion of 19  July 2017, as well as in Annexes 10 et seq. to the same document.35 
Specifically, the European Union criticizes the fact that, with respect to this information, the 
Subdirectorate: did not require the domestic industry to show "good cause" for th e information to 
be treated as confidential; did not receive "good cause" from the domestic industry for the 
information to be treated as confidential; did not require the applicant to furnish non -confidential 
summaries of that information; and did not receive from Fedepapa a statement of reasons why 
summarization of the information was not possible, nor did the Subdirectorate provide such an 
explanation in its determination on confidentiality.36 
3.2.  With respect to the redacted information in section d(i ) of the revised  application of 
19 July 2017, this information is included in full in Fedepapa's original  non-confidential application 
dated 22  June 2017, which the European  Union itself submitted as Exhibit EU -8. A reasonable 
reading of the relevant parts  of the original and revised applications (the structure and content of 
 
33 European Union's response to Panel question No. 2.1, para. 51.  
34 European Union's first written submission, para. 82.  
35 European Union's response to Panel question No.  3.1, para.  55. 
36 European Union's fir st written submission, paras. 73 and 87.  WT/DS591/7/Add.1  
 
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  the respective paragraphs, as well as the titles, structure and coordinates of each of the relevant 
tables) allows any reader to understand that it is actually the same information.  
3.3.  Thus, Colombia considers that Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement do not 
apply to the redacted information in section d(i) of the revised application of 19  July 2017. The 
premise of Article 6.5 revolves around information that has been  accorded confidential treatment. 
Consequently, Article 6.5 is not applicable here because Fedepapa never requested confidential 
treatment for the redacted information in section d(i) of the revised application nor did the 
Subdirectorate afford it such tre atment. Even more importantly, Fedepapa itself submitted it in 
another document, which is in the public  record of the investigation.  
3.4.  With regard to the information redacted in footnote 3 of the revised application of 19  July 2017, 
Colombia confirms that it is not in the public version of the record. However, in the absence of a 
request for this information to be treated as confide ntial, the Subdirectorate simply disregarded it 
under Article 6.5.2 of the Anti -Dumping Agreement. Colombia observes, in this regard, that the 
European Union does not claim that this information was used by the Subdirectorate during its 
investigation.  
3.5.  Lastly, in relation to the information contained in Annexes 10 et seq. that the Subdirectorate 
afforded confidential treatment, the European Union has failed to demonstrate that the good cause 
invoked by Fedepapa in its revised application of 19  July 2017 was "insufficient" under Article  6.5 of 
the Anti -Dumping Agreement.37 In particular, Colombia has demonstrated that the Subdirectorate 
required in its deficiency letter of 29  June 2017 the "[i]dentification and justification  of confidential  
information".38 In addition, the Subdirectorate accepted Fedepapa's assertion that this information 
was confidential because it was "financial", as it understood that the disclosure of this information, 
by its very nature, "could cause serious prejudice to the companie s involved"39 and their disclosure 
"could generate a significant advantage for a competitor".40 The Subdirectorate also recalled that 
there are constitutional and administrative provisions to protect privacy and personal data, as well 
as competition and in tellectual property laws that prohibit the disclosure of important commercial 
and financial information.41 
3.6.  In response, the European Union simply notes that "it is not at all certain that all commercial 
and financial information deserves confidential  treatment and even less that it constitutes a 'business 
secret'".42 However, this assertion is too vague and imprecise, and fails to explain why specifically 
the information in Annexes 10, 11 and 12 cannot be described as a "business secret", as Colombian  
legislation provides. In the absence of such explanations, the European  Union's claim under 
Article  6.5 relating to "good cause" must be rejected.  
3.7.  Moreover, in relation to the argument that the Subdirectorate did not require a non -confidential 
summa ry, Fedepapa did provide a statement of the reasons why summarization of the financial 
information in Annexes 10, 11 and 12 was not possible, namely: this information was "numerical".43 
Colombia has pointed out that this claim should be read in the relevan t factual context that, in the 
same revised application, Annexes 10, 11 and 12 were submitted separately by each applicant 
company.44 Thus, the European Union's assertion that there was no explanation as to why it was 
impossible to furnish a non -confidential summary of the information contained in Annexes 10, 11 
and 12 is incorrect and should be rejected.  
4  THE EUROPEAN UNION'S COMPLAI NT REGARDING THE USE OF DATA FROM THE DIAN 
DATABASE AS "BEST INFORMATION AVAILABLE" SHOULD BE REJECTED  
4.1.  The European Union erroneously claims that Colombia acted inconsistently with its obligations 
under Articles 2.1 and 6.8 of the Anti -Dumping Agreem ent, and Annexes II(3) and II(6) thereto. 
 
37 European Union's response to Panel question No. 3.4.d., para. 64.  
38 Deficiency letter dated 29 June 2017, (Exhibit EU -9). 
39 Confidential technical report on the initiation of the investigation, (Exhibit COL -10 (BCI)), folio 537.  
40 Subdirectorate's response to the European Union's comments on the Essential Facts Technical Report, 
(Exhibit EU -17), p.  11 (folio 6060).  
41 Articles 15 and 73 of the Political Constitution of Colombia and Article 24.1 of Law No. 1437 of 2011 
(Code of Administrative Procedure and Administrative Disputes).  
42 European Union's response to Panel question No. 3.4.d, para. 64.  
43 Fedepapa's application dated 1 9 July 2017, (Exhibit EU -10), folio 297.  
44 Colombia's response to Panel question No. 3.5.a, para. 132.  WT/DS591/7/Add.1  
 
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  The European Union's complaint is based on the fact that the Subdirectorate used data extracted 
from the database of the National Tax and Customs Directorate (DIAN, DIAN database) to calculate 
the export price.45 
4.2.  Colombia's main argument is that the information in the DIAN database cannot be considered 
to be "best information available" or secondary information. The information collected from the DIAN 
database is information that is exclusively relevant to the  company concerned, is information based 
on documents prepared by the same company, and is also information linked to the same export 
transactions.  
4.3.  The DIAN database contains information that is, because of its very nature and its original 
source, id entical to the information provided by the investigated companies in their questionnaire 
responses. The relevant data from the same transactions that are reported in the questionnaire 
response are fed into the DIAN database, which is always checked against  the response for 
consistency. Data entered into the DIAN database are based on documents prepared by the 
exporting companies. It is therefore primary information that is directly and exclusively relevant to 
exporters. This information is identical, in ter ms of its nature and origin, to the information contained 
in the questionnaire responses. As a result, the investigating authority was fully within its 
discretionary powers in using these data as primary information relevant to the investigated 
companies.  
4.4.  This methodology – and the use of DIAN data – was no secret during the investigation. The 
Subdirectorate clarified this fact in several documents, explicitly and transparently, during the 
investigation.46 Therefore, all interested parties were duly i nformed what information was used and 
how it was used, and some of the interested parties submitted comments in that regard.  
4.5.  In short, the information in the DIAN database does not constitute "best information available" 
and therefore does not lead t o the application of Article 6.8 of the Anti -Dumping Agreement or of 
Annex II thereto.  
4.6.  The concept of "best information available" is not defined in the covered agreements. There is 
no definition either in Article 6.8 of the Anti -Dumping Agreement an d Annex II thereto, or in 
Article  12.7 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).47 An 
investigated company is the primary source of the information that the authority needs for the 
determination of dumping. This is because the primary information that must underpin a dumping 
determination is the information relevant to the specific company and to the transactions that the 
authority examines. Such information is usually only in the possession of the company itself and can 
only be provided by the company, because there are normally no other entities that possess that 
information.  
4.7.  In the light of the foregoing, the information in question taken from the DIAN database is still 
information directly relevant to the company. T he fact that this is not, strictly speaking, information 
provided in the context of the dumping investigation does not change the legal assessment. In 
addition, the DIAN database is an official database certified by the National Administrative 
Department o f Statistics (DANE) of Colombia and, therefore, the information is authoritative and 
reliable. The Subdirectorate made this fact clear during the investigation.  
4.8.  The European Union adopts a highly formalistic approach, by suggesting that primary 
information may only be that provided by an investigated company in the formal context of an 
investigation.48 Colombia rejects this interpretative approach. There is no basis in the text of the 
Anti-Dumping Agreement to support such a definition. Colombia provi ded an example that shows 
the type of illogical conclusions to which the European  Union's inflexible and categorical definition 
leads. If an investigated company refuses to submit its consolidated financial statements to the 
authority during the investigat ion, and the authority obtains these statements by its own means 
(for example, if they already have the statements in their possession thanks to a past administrative 
 
45 European Union's first written submission, paras. 120 -131. 
46 Non-confidential Final Essential Facts Technical Report, (Exhibit EU -3), Section 2.5, p. 71; Response 
to comments on the Essential Facts Technical Report, (Exhibit EU -17), p. 13; Non -confidential Final 
Technical  Report, (Exhibit EU -4), Section 2.5, pp. 71 -72; Final determination, (Exhibit EU -5), p. 3.  
47 Panel Report, US – Anti-Dumping and Coun tervailing Duties (Korea) , para.  7.617.  
48 European Union's response to Panel question No.  4.3, para.  75. WT/DS591/7/Add.1  
 
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  procedure), these statements, according to the European  Union, should be treated as secon dary 
information. However, this is tantamount to tying an investigating authority's hands and cannot be 
either acceptable or correct. The European Union has never countered Colombia's example.  
4.9.  Colombia's example shows that there is a need to focus on the substance and content of the 
information . This reflects much better the intentions of those who drafted the covered agreements, 
instead of attaching importance exclusively to formal aspects such as who provides the information 
and when  exactly they pr ovide it.  
4.10.   In its responses to the Panel's questions, the European Union stresses that the manner in 
which information is presented in the DIAN database, on the one hand, and in the questionnaire 
replies, on the other hand, is not 100% identical.49 In this connection, the European Union offers 
detailed descriptions of the alleged differences between the data in the questionnaires and the data 
in the DIAN database.50 The European  Union's arguments, as the proverb goes, fail to "see the wood 
for the tre es". The remarkable focus on the technical details seen in the European  Union's reasoning 
confirms that the two sets of data are essentially the same.  
4.11.   The European Union highlights the level of detail of the information allegedly furnished by the 
DIAN database and compares this level of detail with that of the information provided by the 
questionnaire responses, particularly with respect to the models or subproducts. The European  Union 
does not describe the DIAN database correctly when it claims that  the database is "blind" with regard 
to the information on models or types of products.51 Additional factual information that goes beyond 
the description of the product according to its tariff subheading is provided in box 91 on the import 
declaration form . Depending on the circumstances, the description given in box 91 of the import 
declarations may allow additional features of the models or subproducts contained in a particular 
consignment to be taken into consideration.  
4.12.   The European Union claims t hat the use of the DIAN database "prevent[s] a comparison at 
the required level of granularity".52 In other words, the European Union seems to argue that, even 
if it were necessary to carry out a model -by-model comparison, the Subdirectorate could not make  
such a comparison because, according to the European Union, the level of detail of the information 
in the DIAN database does not allow for it. However, this is incorrect. The Subdirectorate is always 
open, in each investigation, to considering whether car rying out a model -by-model comparison is 
relevant, depending on the particular circumstances of each investigation. In this investigation, it 
was determined that such a comparison was not appropriate.53 
4.13.   Nor does the DIAN database qualify as "officia l import statistics" within the meaning of 
Annex  II(7) to the Anti -Dumping Agreement. The term "official import statistics" refers to aggregate 
information, not information limited to specific individual companies. In contrast, the DIAN database 
contains i nformation and data that relate to individual companies' specific transactions  and therefore 
does not fall within the scope of Annex II(7). Data of this type – i.e. data on individual private 
companies – are not within the scope of Annex II(7).  
4.14.   In any event, even if the panel were to consider that the information in the DIAN database 
constituted "best information available", Colombia considers that the Subdirectorate complied with 
the requirements under Article 6.8 and Annex II. The Subdirectorate in formed the investigated 
companies through the Final Essential Facts Technical Report that the source of the export price was 
the DIAN database.54 The companies therefore had ample opportunity to submit their comments on 
the Subdirectorate's approach and, i n fact, some interested parties did just that.55 The 
Subdirectorate  then justified its decision to continue to rely on the DIAN database in the document 
containing the responses to those comments.56 
 
49 European Union's response to Panel question No.  4.3, para.  78. 
50 European Union's response to Panel question No. 4.3, paras.  83-91. 
51 European Union' s response to Panel question No.  4.3, para.  83. 
52 European Union's response to Panel question No.  4.3, para.  85. 
53 See Colombia's first written submission, paras. 9.11 -9.47. 
54 Non-confidential Final Essential Facts Technical Report, (Exhibit EU -3), Section  2.5, p. 71.  
55 For example, Response to the comments on the Essential Facts Technical Report, (Exhibit EU -17), 
p. 8 (Commission), p. 19  (Agrarfrost), and p. 25 (Agristo and Clarebout).  
56 Responses to the comments on the Essential Facts Technical Report, ( Exhibit EU -17), p. 13.  WT/DS591/7/Add.1  
 
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  5  THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 REGARDING THE ADJUSTMENT 
FOR PHYSICAL CHARACTERISTICS  SHOULD BE REJECTED  
5.1.  The European Union claims that the Subdirectorate acted inconsistently with Article 2.4 of the 
Anti-Dumping Agreement by failing to take into account physical differences between models of the 
product under investigation, which al legedly resulted in an unfair comparison between the export 
price and the normal value.57 
5.2.  The basis of the European Union's claim is that the "product under investigation" covers a 
number of models or subproducts with differences in physical characte ristics. The European  Union 
is of the view that these differences were so great that they affected price comparability. Therefore, 
according to the European Union, it was necessary to carry out multiple comparisons58 or make 
adjustments.59 
5.3.  Colombia, in theory, does not disagree with the European Union's claim that physical 
characteristics may affect the price comparability of a product. If demonstrated, an investigating 
authority must take these differences into account in making a fair comparison, fo r example, by 
making adjustments or making multiple comparisons.  
5.4.  In the present case, however, these differences were not properly demonstrated as a matter 
of fact. The Subdirectorate decided, in exercising its discretion as the trier of facts, that no such 
differences in physical characteristics had been demonstrated. Therefore, the Subdirectorate did not 
commit any violation in making a single comparison, without differentiating between the alleged 
"models" or "subproducts", without making other adj ustments and without relying on the companies' 
unverified assertions.  
5.5.  It is important to remember that Article 2.4 stipulates that investigating authorities must make 
a fair comparison and establishes certain requirements that must be met to ensure t hat the 
comparison is indeed fair. Article 2.4 is explicit in specifying that the relevant differences are those 
"which ... affect price comparability". The Appellate Body has explained that this requirement "refers 
to differences in characteristics of the  compared transactions that have an impact, or are likely to 
have an impact, on the price of the transactions".60 
5.6.  A key point is that the differences are " demonstrated  to affect price comparability".61 Although 
case law has established that there mus t be a "dialogue" between the investigated companies and 
the investigating authority in this regard62, it is clear that the primary burden rests with the 
investigated company to provide information to the investigating authority on the alleged 
differences.  Of course, this information must be convincing, comprehensive and consistent.63 The 
"dialogue" under Article 2.4 must be a two -way street. Interested parties have an obligation not only 
to file requests, but also to support them with sufficiently relevant  and convincing evidence. For 
example, as the Appellate Body clarified in its report in EC – Fasteners (China) , "exporters bear the 
burden of substantiating  … their requests for adjustments".64 Thus, despite the obligation to ensure 
a dialogue, it may be p erfectly legitimate for an investigating authority not to accept such requests, 
depending on each individual case. The case law has found that "the fair comparison obligation does 
not mean that the authorities must accept each request for an adjustment".65 
5.7.  Colombia has demonstrated numerous flaws in the submissions of the investigated companies, 
Aviko, Mydibel and Agrarfrost.66 The European Union does not deny the existence of these flaws and 
accepts that they constituted deficiencies in the companies ' responses and arguments during the 
investigation. For instance, the European Union seems to agree that the conversion factor proposed 
 
57 European Union's first written submission, paras. 149 -179. 
58 European Union's first written submission, para. 142.  
59 European Union's first written submission, para. 143.  
60 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para. 5.22 (referring to Appellate  Body Report, 
US – Zeroing (EC) , para.  157). 
61 Emphasis added.  
62 Appellate Body Report, EC – Fasteners (China) , paras. 488 -489; and Panel Report, Egypt – Steel Rebar , 
para. 7.352.  
63 Appellate Body Report, EC – Fasteners (China) , para. 488.  
64 Appellate Body Report, EC – Fasteners (China) , para. 488.  
65 Appellate Body Report, EC – Fasteners (China) , para. 488.  
66 Colombia's first written submission, paras. 9.15 -9.47. WT/DS591/7/Add.1  
 
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  by Aviko, and referred to in Colombia's first written submission67, was deficient.68 The 
European  Union also accepts tha t Aviko put forward certain arguments under the "wrong heading".69 
The European Union even accepts that there were "imprecisions" in Aviko's explanations in this 
regard.70 Moreover, the European Union does not rebut other examples provided by Colombia, suc h 
as certain sales prices in Mydibel's questionnaire that did not appear to reflect the differences in 
production costs alleged by Mydibel.71 
5.8.  These admissions, in Colombia's view, indicate that, in reality, the European  Union recognizes 
the challenge  posed by the deficient evidence submitted to the Subdirectorate. The European  Union 
simply cannot assert that claims tainted by "imprecisions" and documents submitted under "wrong 
headings" could give rise to an obligation for the authority to agree to th e investigated companies' 
request.72 
5.9.  It is also incorrect to assert that the Subdirectorate had an obligation, upon the initiation of 
the investigation, to propose methods for dividing the product under consideration into subgroups.73 
Instead, the burden of requesting adjustments or a model -by-model comparison lay with the 
companies and they failed to convince the authority.  
5.10.   The European Union disagrees with the Subdirectorate's decision and is of the view that the 
companies had  outlined their claims in a sufficiently clear manner so as to oblige the investigating 
authority to compare the like product on a model -by-model basis for the purposes of its calculation 
of the margin of dumping. In other words, the European  Union is not satisfied with the 
Subdirectorate's conclusion and, on this basis, claims that the investigating authority erred in its 
assessment of the facts and of the interested parties' arguments.  
5.11.   Pursuant to the applicable standard of review under Article  17.6(i) of the 
Anti-Dumping  Agreement, an investigating authority enjoys a considerable margin of discretion, and 
this discretion must be respected by panels and the requesting parties in their arguments before the 
panel. Colombia considers that the European  Union's arguments do not comply with this standard 
of review. Instead of adapting its arguments to the standard of review, the European  Union simply 
claims that the Subdirectorate did not reach the correct conclusion. This type of argument is not 
sufficien t to make a prima facie  case because it does not respect the standard of review of 
Article  17.6(i).  
6  THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 CONCERNING THE ADJUSTMENT 
FOR PACKAGING COSTS SHOULD BE REJECTED  
6.1.  The European Union claims that the S ubdirectorate deducted packaging costs from the export 
price, but not from the normal value.74 According to the European Union, by proceeding in this way, 
the Subdirectorate  breached the fair comparison requirement.75 The European Union highlights a 
number of assertions on this matter by the company during the investigation and also points to the 
conclusions of the investigating authority.  
6.2.  First, Colombia asks the Panel  to reject the European Union's claim, because it does not comply 
with Article 6.2 of the DSU and thus falls outside of this Panel's jurisdiction. Under Article  6.2, the 
complainant party is required to provide a sufficiently precise description of the mea sure at issue 
and "a brief summary of the legal basis of the complaint sufficient to present the problem clearly".  
6.3.  The problem with the European Union's request with regard to packaging costs is that the 
request identifies one particular element  of the calculation decision, while the first submission 
addresses another element . More specifically, the European Union's request refers to the request for 
adjustments  made by Mydibel. The European Union claims that the Subdirectorate acted 
 
67 Colombia's first w ritten submission, paras. 9.15 -9.23. 
68 European Union's response to Panel question No.  5.2, para.  108. 
69 European Union's response to Panel question No.  5.2, para.  108. 
70 European Union's response to Panel question No.  5.2, para.  108. 
71 Colombia's first written submission, paras. 9.34 -9.40. 
72 European Union's response to Panel question No. 5.2, para. 108.  
73 European Union's response to Panel question No. 5.2, paras.  105-106. 
74 European Union's first written submission, para. 181.  
75 European Union's first written submission, para. 181.  WT/DS591/7/Add.1  
 
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  inconsistently wit h "Article 2.4 of the Anti -Dumping Agreement because Colombia did not make a 
fair comparison between the export price and the normal value. In particular, Colombia did not make 
due allowances for differences which affect price comparability ... Inter alia , Colombia disregarded 
... differences in packaging ... []".76 This is a reference to the differences in packaging between the 
products sold on the domestic market and those sold on the export market.  
6.4.  By contrast, in its first written submission, the European Union does not focus on the matter 
of "differences in packaging" as requested by Mydibel. Instead, the European Union concentrates on 
what it characterizes in effect  as an improper unilateral deduction of packaging costs from the export 
price. Thi s matter is, of course, separate and distinct from the first matter. It is obvious that the 
problem of a deduction of certain costs from one side but not from the other side – as described by 
the European Union – may exist regardless of whether there are d ifferences in packaging in the 
transactions. This distinction between adjustments and improper deductions is drawn by the 
European Union itself in its panel request with regard to another topic, where it refers not to 
adjustments but to "deducti[ons of] ce rtain sea freight and insurance costs ... from the export price 
of a company, thereby unduly lowering the export price".77 The packaging issue should therefore 
have been included in the same way as the claim relating to the allegation that sea freight and 
insurance were deducted twice. However, the European Union did not include any such language or 
reference in its request.  
6.5.  A panel request cannot be supplemented or corrected at a later date. Accordingly, the Panel 
should reject the claim relating to packaging costs because it falls outside of the Panel's jurisdiction 
under Article 6.2 of the DSU.  
6.6.  Even if the Panel were to consider the merits of the claim, the European Union's arguments 
should be rejected. Colombia considers it important to point  out that the European Union in no way 
provides a complete or objective description of the factual background and the Subdirectorate's 
determination in that regard.  
6.7.  The logic underlying the Subdirectorate's determination is that the packaging costs t hat were 
deducted from the "gross" export price reflect the packaging costs that are unique to export 
transactions . It is therefore a matter of packaging in addition  to the "normal" or "base" packaging. 
It is obvious to Colombia that the packaging associat ed with a sea journey taking several weeks, for 
frozen products, is more complex and costly than the packaging material for sales in the country of 
production, which do not require shipping or other modes of long -distance transport.  
6.8.  For the Subdirect orate, this fact forms the basis for its understanding of the factual background, 
and it is this exact understanding that is reflected in the final determination. The Subdirectorate 
deducted " export  packaging material", not all packaging material . 
6.9.  The investigating authority proceeded on the basis of its understanding that there were certain 
packaging costs for exports that were in addition  to the " base" packaging costs. According to this 
understanding, "base" packaging is the packaging applicable to each sale, regardless of whether it 
is a domestic sale or an export sale. By contrast, export packaging is any additional material used 
in the context of additional requirements arising with regard to export transactions. The investigating 
authority's unde rstanding was that the packaging costs in the questionnaire responses, listed in the 
section on export sales, reflected the additional packaging cost for exports, and that it was therefore 
necessary to deduct these costs in order to make a fair comparison.  
6.10.   Colombia considers that the Subdirectorate was within the bounds of its discretion by adopting 
the approach in question, on the basis of its understanding of the facts as presented by the company 
in its questionnaire response. Based on Colombia's c urrent approach, the Subdirectorate's 
calculation was objective and correct. In its first written submission, the European Union has failed 
to demonstrate that an objective investigating authority would not have adopted this approach and 
would not have det ermined the export price in the same way as the Subdirectorate.  
 
76 Request for the establishment of a panel by the European Union, WT/DS591/2, item 5.  
77 WT/DS591/2.  WT/DS591/7/Add.1  
 
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  7  THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 CONCERNING THE ADJUSTMENT 
FOR OIL SHOULD BE REJECTED  
7.1.  The European Union claims that the Subdirectorate improperly rejected Agrarfrost's r equest 
for an adjustment for oil costs and did not engage in the appropriate dialogue with the company 
regarding its request. Agrarfrost requested an adjustment for the use of different types of oil in the 
production of its potatoes. Agrarfrost claimed tha t, while the vast majority of its output was produced 
using palm oil, which is cheaper, a proportion of its sales in Germany was produced using sunflower 
oil, which is more expensive.  
7.2.  It is obvious that, in order to support its request, the company s hould have provided adequate 
evidence to substantiate these factual assertions. However, the company failed to substantiate these 
assertions with documentary evidence in its questionnaire response, during the verification visit and 
during other stages of t he investigation. There is no document in the record to support the company's 
claims, and the European Union has not identified any document in this regard, despite having access 
to all the company's confidential documents. Consequently, the Subdirectorate  rejected the request 
for an adjustment and explained this in its reports.  
7.3.  Throughout these proceedings, the European Union has failed to identify a single document 
supporting Agrarfrost's claims. The European Union has referred to the supposedly mor e than 
300 pages of documents collected during the verification visit, which it claims were about the 
verification of the data relevant to the oil issue. However, despite this large number of documents, 
the European Union has not identified a single one th at deals with the subject of oil and supports 
the company's allegations in this regard. The European Union has also submitted an affidavit by 
Agrarfrost employees from 2022. It is striking that these employees claim to remember details of 
the visit such as  the exact time of the visit yet cannot recall a single example from the 300+ pages 
collected on the subject of oil.  
7.4.  In this context, the European Union also attaches great importance to the verification report 
and to Annex 9 in particular.78 However , Annex 9 to the visit report is a document prepared by the 
company. The European Union does not deny this fact. This fact is of great factual and legal 
relevance. The company submitted this document to the Subdirectorate at the end of the visit. In 
the in terest of transparency, the Subdirectorate attached this document to the report as an annex, 
despite the fact that it was not a summary prepared by the investigating authority. However, this 
decision by the Subdirectorate to include the document in the int erest of transparency cannot be 
interpreted as the Subdirectorate approving or consenting to the factual assertions  made therein. It 
should also be noted that the numerous factual assertions contained in that document are not 
supported or substantiated by any document in the record.  
7.5.  The European Union also claims the alleged "endorsement" by the Subdirectorate on the basis 
of certain words in the verification report itself . These words, in section 2.5 of the report, would 
allegedly make it possible to  impute to the Subdirectorate the intention to confirm the content of 
the statements made by Agrarfrost.79 However, it is easy to see that the words in the report relied 
on by the European Union reflect only the company's arguments and describe the purpose  of the 
visit; they do not reflect any analysis, let alone approval or endorsement, by the investigating 
authority.  
7.6.  It should also be noted that these parts of the verification report cannot support any claim that 
the Subdirectorate confirmed and gra nted the adjustment. There is a significant difference between 
a verification  and the determinations  of an investigating authority. The European  Union's arguments 
appear to confuse this difference. Verifying  data or information – during a verification visi t or at a 
later stage – is not the same as granting an adjustment . Verification takes place before the authority, 
in its final determination, decides whether or not to grant a requested adjustment. These are two 
conceptually distinct steps that take place at different times.  
7.7.  If certain data or certain information underlying an adjustment request cannot be verified, it 
will of course not be possible to grant the adjustment. But even if certain data can be verified, this 
does not necessarily mean that the requested adjustm ent can be granted. For example, if a company 
under investigation requests an adjustment for differences in levels of trade, it may be the case that 
 
78 See, for example, European Union's fir st written submission, paras. 198 -199. 
79 European Union's response to Panel question No.  5.9, para.  129. WT/DS591/7/Add.1  
 
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  all the data – e.g. the identity of customers in the two markets, invoices, sales prices, all relevant 
sales aspects, after -sales services, distribution channels, etc. – are successfully verified, but that 
the investigating authority still cannot grant the requested adjustment. This would be because the 
authority, after weighing up all the verified or verifiabl e data and facts, has determined that the 
transactions at issue, because of their substance, do not represent different levels of trade. This 
example clearly demonstrates the significant difference between verifying data and deciding on a 
requested adjustm ent. Another example would be if any facts or data were verified in respect of 
some  sales, but not in respect of all the sales for which an adjustment was requested.  
7.8.  According to the case law on this subject, there is a clear distinction between the results of the 
verification (under Article 6.7) and the essential facts that form the basis of the final decision 
(under  Article 6.9). When an investigating authority provides its verification report in a document 
that also contains the essential facts (wh ich is or was the practice of the European Union80), in a 
sense, there may be confusion between the results of the verification, on the one hand, and the 
essential facts on which the final decision was based, on the other. It is perhaps in this context tha t 
the European Union argues that the verification report contains the authority's final word on an 
issue, such as the request for an adjustment. However, when the authority prepares a verification 
report in a separate document, long before the report on th e essential facts and the final report, the 
verification report is not the final word. When the verification report is issued long before the report 
on the essential facts or the final report, it makes no sense to treat its content as a final decision. 
In these circumstances, it is not correct to argue, as the European Union does, that the verification 
report contains a decision or commitment by the authority to grant the requested adjustment.  
7.9.  In any event, the European Union's numerous arguments conc erning verification in fact relate 
to whether the report adequately reflects what happened during the verification visit. However, such 
a claim should be submitted under Article 6.7 and not under Article 2.4, as the European Union has 
done.81 
7.10.   Some a rguments in this dispute have referred to the administrative proceeding of "direct 
revocation" in which Agrarfrost provided new evidence that, had it been submitted during the 
investigation, could have influenced the Subdirectorate's decision. The direct r evocation proceeding 
is an administrative proceeding under Colombian law conducted before the same investigating 
authority that issued the challenged decision. In the direct revocation proceeding, Agrarfrost 
submitted a sheet of product specifications requ ired by a purchaser for a specific transaction. The 
set of documents in this evidence also contains the invoice for the transaction in question.  
7.11.   As the Subdirectorate already pointed out during the direct revocation82, this type of evidence 
had not been submitted during the investigation. The question arises whether the company 
considered this documentary evidence to be important enough to be submitted during the direct 
revocation proceeding and why the company did not submit it previously during the  investigation. 
It is precisely this type of document and evidence that the Subdirectorate noted as not being in the 
record.  
8  THE CROSS -CUTTING CLAIM RELATING TO THE INCLUSION OF NON -DUMPED IMPORTS 
IN THE INJURY EXAMINATION SHOULD BE REJECTED  
8.1.  The E uropean Union claims that the Subdirectorate acted inconsistently with Articles  3.1, 3.2, 
3.4 and 3.5 by including in its injury examination all imports from the countries subject to the 
investigation, including non -dumped imports. In response, Colombia pr oposes dividing the analysis 
of this cross -cutting claim in two: (i) the inclusion of imports with a de minimis  dumping margin; 
and (ii) the inclusion of imports with a negative dumping margin.  
 
80 With respect to recent case law on the verification process, see Panel Report, EU – Fatty Alcohols 
(Indonesia) , paras. 7.221 -7.236; and Panel Report,  EU – PET (Pakistan) , paras. 7.165 -7.182.  
81 Colombia's response to Panel question No. 15.2, para. 101; opening statement at the second meeting 
of the Panel, para. 5.5.  
82 Administrative Review Decision, (Exhibit EU -6), section II.6.2.  WT/DS591/7/Add.1  
 
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  8.1  The Subdirectorate  did not err in including imports with a de minimis dumping margin 
in its injury and causation analysis  
8.2.  The European Union claims that the Subdirectorate incorrectly included imports with de minimis  
dumping margins in its injury and causation analysi s, because these imports are not "dumped".83 
The European Union further alleges that imports with de minimis  dumping margins are imports 
"which have not been investigated"84 and/or that "the legal effect of a de minimis  finding is that 
there is no 'dumping '".85 For this reason, the European Union claims that the Subdirectorate failed 
to conduct an objective analysis of injury and causation, since it included imports with de minimis  
dumping margins, which is inconsistent with Articles 3.1, 3.2, 3.4 and 3.5.86 
8.3.  Colombia, for its part, claims that, in including imports with de minimis  dumping margins in 
the injury analysis, the Subdirectorate relied upon an interpretation of the term "dumped imports" 
that is acceptable under Article 17.6(ii) of the Anti -Dumping Agreement. In this regard, the parties 
agree that, pursuant to Article 17.6(ii), the interpretation of the term "dumped imports" must be 
confined to the customary rules of interpretation of public international law codified in Articles 31 
and 32 of t he Vienna Convention on the Law of Treaties.87 
8.4.  Thus, Colombia notes that the ordinary meaning of the term "dumped imports" is clear and 
unambiguous, since "dumping" is defined in Article 2.1 of the Anti -Dumping Agreement as any 
instance in which the export price is less than "its normal value". From this definition, it follows that 
it does not matter if the difference between the export price and the normal value is small 
(de minimis ) or considerable. As soon as there is such a difference, "dumping" w ill exist. However, 
neither the European Union nor the third parties make any effort to rebut the ordinary meaning of 
the term "dumped imports" adopted by the Subdirectorate. Rather, their arguments are contextual 
and jurisprudential.  
8.5.  This brings us to the context of the term "dumped imports". Colombia has explained that the 
most immediate context is provided for in the fourth sentence of Article 3.5 of the Anti -Dumping 
Agreement (which provides an illustrative list of certain non -attribution factors) , specifically "imports 
not sold at dumping prices". This means that, in the universe of all imports, Article 3 distinguishes 
between "dumped imports" and "imports not sold at dumping prices". It is therefore clear from 
Article 3 that all imports must fall  within one of these two categories. That being the case, imports 
with de minimis  dumping margins clearly fall under the category of "dumped imports" because their 
normal value is higher than their export price.  
8.6.  The European Union, for its part, refe rs to Article 5.8 of the Anti -Dumping Agreement in 
claiming that an investigation must be terminated immediately where it is "determined" that the 
margin of dumping is de minimis , and that this implies that such imports must not be used in the 
injury exami nation. However, an interpretation of Article 5.8 in the light of the customary rules of 
treaty interpretation leads to the conclusion that there is no basis for creating a connection between 
this provision and Articles 3.1, 3.2, 3.4 and 3.5. Colombia has recalled that the drafters of the 
Anti-Dumping Agreement explicitly created a link between de minimis  dumping margins and other 
provisions when they wanted such a link to exist. This is the case with Articles  3.3 and 9.4 of the 
Anti-Dumping Agreement.  
8.7.  By contrast, WTO case law has been clear that, in the absence of an explicit reference to 
imports with de minimis  dumping margins in a particular provision, the person interpreting cannot 
simply presume such a link. For example, in the context of provisi onal measures under Article 7.1(ii) 
of the Anti -Dumping Agreement, a panel rejected excluding imports with de minimis  dumping 
margins from the term "dumping" because, "[h]ad the drafters intended to define 'dumping' with a 
de minimis  component, they could readily have done so".88 Furthermore, in the context of sunset 
reviews under Article 11.3 of the Anti -Dumping Agreement, another panel rejected, in the absence 
of any link between this provision and Article 5.8 (or, alternatively, in the absence of a refer ence to 
 
83 European Union's fir st written submission, para. 248.  
84 European Union's response to Panel question No.  6.2, para.  168. 
85 European Union's response to Panel question No. 16.1(b), para.  189. 
86 European Union's first written submission, paras. 252 and 253.  
87 See Appellate Body Report, US – Gasoline , p. 17.  
88 Panel Report, Canada – Welded Pipe , para. 7.59.  WT/DS591/7/Add.1  
 
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  "de minimis " dumping), the argument that the authority must take into account the de minimis  
threshold in determining the likelihood of continuation or recurrence of dumping.89 
8.8.  Thus, a proper interpretation of Articles 3 and 5.8 of the Anti -Dumping Agreement does not 
support the European Union's position that the consequence of "immediately terminat[ing] the 
investigation" under Article 5.8 is that imports with de minimis  dumping margins must be excluded 
from the injury examination. Rather, wh en the final finding of a de minimis  dumping margin is 
produced along with the authority's final determination, "the only way to terminate immediately an 
investigation, in respect of producers or exporters for which a de minimis  margin of dumping is 
determ ined, is to exclude them from the scope of the order".90 This quote from the Appellate  Body 
is also confirmed by the negotiating history of the current Article 5.8, as Colombia explained in 
paragraphs 9.55 -9.67 of its second written submission. It follows that the intent of Article  5.8 was 
not to change the def inition of "dumping" (and, in particular, of "dumped imports" in Articles  3.1, 
3.2, 3.4 and 3.5) but to exclude imports with de minimis  dumping margins from the application of 
the anti -dumping measure.  
8.9.  Moreover, the European Union also relies on WTO case law to support its argument that imports 
with de minimis  dumping margins are not part of the "dumped imports" in Articles  3.1, 3.2, 3.4 and 
3.5. Mindful of the role of case law in the WTO dispute settlement system, Colombia has been frank 
and open in recognizing the existence of up to six panels that have determined that imports with de 
minimis  dumping margins should be excluded from the injury examination. However, Colombia has 
also explained how this case law is based on a series of obiter dicta  with no solid foundation in the 
customary rules of treaty interpretation. In particular, the first four panels that ruled on this matter 
made this finding as an obiter dictum , as the issue before them was not whether imports with 
de minimis  dumping margins could be included in the injury examination.91 Only in the last two 
disputes, EC – Salmon (Norway)  and Canada – Welded Pipe , were the panels confronted with the 
issue of whether imports with de minimis  dumping margins can be included in the "dumped imports" 
in Articles 3.1, 3.2, 3.4 and 3.5.92 However, they merely relied on prior jurisprudence without 
conducting their own interpretative analysis in accordance with t he customary rules of treaty 
interpretation. In other words, these panels gave preference to what had been said before as obiter 
dicta instead of to objective interpretation analysis under Article  17.6(ii) of the 
Anti-Dumping  Agreement. There is therefore no legal or moral obligation or duty to follow this line 
of jurisprudence unthinkingly, especially when it is not duly substantiated.  
8.10.   In any event, Colombia recalls that, according to Article 17.6(ii) of the Anti -Dumping 
Agreement, the issue before this Panel is whether the measure taken by the Subdirectorate "rests 
upon one of [the] permissible interpretations" of the provisions in question. Should this be the case, 
the Panel should "find the measure [at issue] to be in conformity with the [Anti -Dumping] 
Agreement", regardless of whether another panel, the European Union or even, with all due respect, 
this Panel are inclined towards a different interpretation. Since the Subdirectorate relied upon a 
permissible interpretation of Articles 3.1, 3.2, 3.4  and 3.5 by including imports with de minimis  
margins of dumping for the purposes of its injury and causation analysis, the European Union's 
cross-cutting claim in relation to imports with de minimis  margins of dumping must be rejected.  
8.2  The European U nion has failed to demonstrate that the inclusion of imports with 
negative margins of dumping affects the "objectivity" required in Article 3.1  
8.11.   In addition, the European Union has failed to explain why the inclusion of imports with 
negative margins of dumping undermines the objectivity of the injury and causation analysis.  
8.12.   Colombia states that, pursuant to Articles 3.1 and 17.6(i) of the Anti -Dumping Agreement, in 
order for the injury analysis to be considered inconsistent with Article 3 of th e 
Anti-Dumping  Agreement, it needs to be demonstrated that the injury analysis lacks objectivity or 
that the evidence relied upon by the authority was not positive. In other words, it is not enough for 
the complainant to merely point out specific errors in  the various stages of the "logical progression" 
 
89 Panel Report, US – Corrosion -Resistant Steel Sunset Review , paras. 7.67 and 7.68.  
90 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 219.  
91 See Panel Reports, EC – Bed Linen , para. 6.138; EC – Bed Linen (Article 21.5 – India) , para. 6.131; 
Argentina – Poultry Anti -Dumping Duties , para. 7.303; and EC – Fasteners (China) , para. 7.356.  
92 See Panel Reports, EC – Salmon (Norway) , paras. 7.621 -7.626; and Canada – Welded Pipe , 
paras.  7.79-7.85. WT/DS591/7/Add.1  
 
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  under Article 3. Instead, they must establish a prima facie  case that these errors undermined the 
objectivity of the injury analysis.  
8.13.   WTO case law confirms Colombia's understanding that not every erro r or flaw gives rise to a 
violation of the obligation under Article 3.1 of the Anti -Dumping Agreement (and under the standard 
of review set forth in Article 17.6(i)) to conduct an objective injury and causation examination.93 
Likewise, the third parties in  this dispute agree that "not every error or flaw constitutes a violation 
of the obligation for objectivity in the injury and causation analyses, but rather only those that 
'individually' or 'taken together' are of such a magnitude that they undermine this  objectivity".94 
8.14.   The question, therefore, is whether, by including imports with negative margins of dumping, 
the Subdirectorate undermined the objectivity of its injury analysis. Colombia has explained that 
these imports account for 8.63% of the tot al imports under investigation95, and that the 
Subdirectorate's findings relating to the price analyses (Article 3.2) and the impact on the domestic 
industry (Articles 3.4 and 3.5), made on the basis of verifiable calculations, do not vary depending 
on whe ther imports with negative margins of dumping are included or excluded. This explanation 
has been criticized by the European Union as post hoc rationalization.96 However, Colombia has 
constructively provided this analysis as an indication that the Subdirec torate's examination did not 
lose objectivity by including imports with negative margins. The analysis provided – which is based 
directly on the information contained in the Final Technical Report – is intended to initiate a 
discussion with the European Un ion on the supposed lack of objectivity. However, Colombia's effort 
to provide these explanations cannot obviate the fact that it is the European Union that bears the 
burden of demonstrating the lack of objectivity in the overall injury analysis (and that it is not for 
Colombia to establish a prima facie  case that this analysis was objective). Nevertheless, it bears 
repeating that the European Union has neither established a prima facie  case that the injury and 
causation examination lacked objectivity (desp ite bearing this burden as complainant) nor 
commented upon Colombia's factual explanations.  
8.15.   The European Union has therefore failed to establish a prima facie  case that the injury 
examination lacked objectivity by including imports with negative margins of dumping (8.63% of 
the total).  
9  THE CLAIM UNDER ARTICLES 3.1 AND 3.2 RELATING TO THE EFFECTS OF THE IMPORTS 
ON THE PRICE OF THE DOMESTIC PRODUCT SHOULD BE R EJECTED  
9.1.  The European Union claims that Colombia has acted inconsistently with Articles  3.1 and 3.2 of 
the Anti -Dumping Agreement by conducting a flawed analysis of the effects of the dumped imports 
on the prices of the domestic product in the Colombi an market.97 In its first written submission, the 
European Union puts forward three specific arguments under Articles 3.1 and 3.2 relating to the 
analysis of the effect of the imports on the price of the domestic product. Colombia responds to each 
of these  arguments below.  
9.1  The European Union has failed to demonstrate that the inclusion of non -dumped 
imports is inappropriate  
9.2.  The European Union argues that the Subdirectorate incorrectly included "imported products 
that were found not to have been d umped during the investigation".98 The European  Union further 
claims that the Subdirectorate "also included imports from countries, which were not under 
investigation".99 Colombia addresses these two assertions below.  
 
93 See Panel Reports, US – Countervailing Duty Investigation on DRAMs , para. 7.305; and 
Morocco  – Hot-Rolled Steel , para. 7.219.  
94 See United States' response to Panel question No. 4.3 for the third parties, pa ras. 28 -30; Japan's 
response to Panel question No. 4.3 for the third parties, para. 49; and Brazil's response to Panel question 
No. 4.3 for the third parties, para. 29.  
95 Colombia's first written submission, para. 13.48.  
96 European Union's response to Pane l question No. 6.7.b, para. 204.  
97 European Union's first written submission, section 7.4 subheading.  
98 European Union's first written submission, para. 269.  
99 European Union's first written submission, para. 269.  WT/DS591/7/Add.1  
 
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  9.3.  With respect to the European Uni on's first assertion (the inclusion of non -dumped imports), 
Colombia has explained, firstly, that the term "dumped imports" in Articles 3.1 and 3.2 refers to 
imports for which the investigating authority has calculated a positive margin of dumping, regardl ess 
of its magnitude. Therefore, the term "dumped imports" includes those with a de minimis  margin of 
dumping.100 Secondly, Colombia has also explained that the inclusion of imports with negative 
margins of dumping did not undermine the objectivity of the a nalysis of the effects of the imports 
on the price of the domestic product.101 For these reasons, the European Union's consequential 
argument that the Subdirectorate  violated Articles 3.1 and 3.2 by including both de minimis  dumped 
imports and imports with negative margins of dumping is without merit and should be rejected.  
9.4.  With regard to the second assertion (the inclusion of imports from countries that were no t 
under investigation), Colombia confirms that this is incorrect. The European Union asserts this fact 
without substantiating it with appropriate explanations or, more importantly, with references to the 
record or the Subdirectorate's determination. On the  contrary, a plain reading of the Final Technical 
Report confirms that the Subdirectorate separated the effects of the imports from countries that 
were under investigation from those of imports from other countries. Colombia observes that the 
European Unio n has dropped this argument after realizing its error.102 
9.2  The European Union has failed to demonstrate that the data used in the price analysis 
were inadequate  
9.5.  The European Union argues that the data used in the price analysis were "inadequate". 
Specifically, the European Union refers to section 5.3 of its first written submission in an attempt to 
demonstrate that the supposed confidentiality -related errors identified in that section also give rise 
to a violation of Articles 3.1 and 3.2. This argu ment is incorrect because, even assuming that there 
are errors in the confidential treatment of the information, the consequence of this would be an 
inconsistency with Articles 6.5 and 6.5.1. Furthermore, the domestic industry's application (which 
contains  the alleged confidentiality -related errors) and the Subdirectorate's technical reports are two 
separate documents relating to two distinct procedural steps and are drafted by two different actors. 
As a result, the European Union cannot accuse Colombia of a violation of Articles  3.1 and 3.2 of the 
Anti-Dumping Agreement for alleged confidentiality -related errors in the domestic industry's 
application.  
9.6.  In any event, Colombia has indicated that the Subdirectorate provided a detailed explanation 
of the p rice trends of the domestic product, not only visually, using a graph, but also with an 
explanation of the fluctuations in percentage terms. The Subdirectorate thus fulfilled its obligation 
to "satisfy the right of other parties to the investigation to obt ain a reasonable understanding of the 
substance of the confidential information, and to defend their interests".103 The price analysis 
provided the necessary information through the examination of trends, and the authority conducted 
an objective examination  as required by Articles 3.1 and 3.2. It is therefore clear that the 
European  Union's assertions relating to confidentiality in the analysis of the effects of the imports 
on the prices of the domestic product should be rejected.  
9.3  The European Union has  failed to establish a prima facie case that the Subdirectorate 
has conducted an inadequate analysis of price comparability  
9.7.  Lastly, the European Union claims that the Subdirectorate failed to adequately assess price 
comparability.104 The European  Union's argument is based on the fact that the Subdirectorate 
compared the real implicit price of the domestic product and the price of the imports, and that it did 
so in terms that were not comparable. Furthermore, the European Union makes reference only to 
the analysis of the domestic price trends, but does not refer, in its first written submission, to the 
part of the final determination in which the Subdirectorate examined the effects of the imports on 
the domestic price pursuant to the second sentence of A rticle 3.2 of the Anti -Dumping Agreement.  
9.8.  In its response, Colombia has drawn the Panel's attention to the relevant part of the final 
determination containing the analysis of the effects of the imports on the domestic price. On this 
 
100 See paras. 13.13 -13.28 above.  
101 See paras. 13.53 -13.54 above.  
102 See European Union's response to Panel question No. 7.1, paras. 206 -212. 
103 Appellate Body Report, EC – Fasteners (China) , para. 542.  
104 European Union's first written submission, para. 271.  WT/DS591/7/Add.1  
 
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  basis, Colombia h as clarified that the Subdirectorate conducted a price depression and suppression 
analysis, and not a price undercutting analysis. Thus, in accordance with Article  3.2, the 
Subdirectorate did not directly compare the price of the imports with the price of the domestic 
product, and was not required to do so. This is because the second sentence of Article 3.2 requires, 
for the purposes of the price depression and suppression analyses, an examination of the impact of 
"imports" (not necessarily their prices) on  the price of the domestic product. This price depression 
or suppression analysis can be conducted, for example, through an analysis of import volumes or 
market share. This is precisely what the Subdirectorate did.  
9.9.  The Subdirectorate found that the p rice of the domestic product had declined by 5.38% and 
that it could not be increased despite the levels of inflation. In addition, despite also finding an 
upward trend in the price of the imports, the Subdirectorate then immediately found a very 
significa nt increase in the volume  of the imports of 51.85%. According to the Subdirectorate, this 
increase "had a negative impact on the domestic industry". Moreover, the Subdirectorate analysed 
the situation in the domestic market and found that, while the domest ic industry's share was down 
by 1 percentage point, that of imports was up 11 percentage points.105 
9.10.   In subsequent submissions, the European Union has roundly criticized the Subdirectorate's 
analysis of the effect on prices, indicating that the Subdir ectorate did compare the price of the 
imports with the price of the domestic product by using the expression "[t]hat contrasts with".106 
This is incorrect. First, the Subdirectorate found that there had been a 5.38% drop in the domestic 
price; second, it us ed the expression "[t]hat contrasts with"; and third, it mentioned the 
1.66%  increase in the price of the imports.107 It therefore follows that the Subdirectorate did not 
compare import prices with import prices, but rather, juxtaposed their trends . This ju xtaposition 
(or comparison, to use the European Union's word) provides very useful information on the 
behaviour of both prices, which was what the Subdirectorate was looking for. The trends in the 
domestic prices and import prices were therefore juxtaposed  in comparable terms (percentages).  
9.11.   Consequently, it is clear that the European Union has failed to establish a prima facie  case 
that the analysis of the effects of the imports on the prices of the domestic product is inconsistent 
with Colombia's ob ligations under Articles 3.1 and 3.2 of the Anti -Dumping Agreement. The 
European Union's claim on the basis of these provisions should therefore be rejected.  
9.4  The arguments submitted late by the European Union - should be rejected as untimely  
9.12.   As stated, in its first written submission, the European Union put forward three arguments 
relating to its claim under Articles 3.1 and 3.2 of the Anti -Dumping Agreement. None of these 
arguments refer to the Subdirectorate's analysis of the effects of the im ports on domestic prices, 
which found price depression and suppression. However, over the course of the Panel proceedings, 
the European Union has been adding new arguments relating to the Subdirectorate's analysis.  
9.13.   More specifically, the European Un ion continues to put forward new arguments in the final 
stage of the proceedings, namely, in its responses to the Panel's questions following the second 
substantive meeting. These arguments are: (1) criticism of the Subdirectorate's reading of the trend 
in the real implicit price of the domestic product108; (2) criticism of the finding that the volume of 
imports increased by 51.85% and of the failure to outline the "explanatory force" this increase 
provides for the prices of the domestic product109; (3) criti cism of the failure to explain " why this 
increase in volumes of imports at higher prices than domestic prices depressed those prices or 
prevented those domestic prices from rising as they otherwise would have done"110; and (4) that, 
in analysing the depres sion and suppression of domestic prices, the Subdirectorate should have 
carried out "a counterfactual analysis of what would otherwise have occurred".111 
 
105 Response of the Trade Practices Subdirectorate to BELGAPOM's comments, (Exhibit EU -17), p. 6.; 
and Response of the Trade Practices Subdirectorate to Mydibel's comments, (Exhibit EU -17), p. 31. See als o 
Final Determination, (Exhibit EU -5), pp. 5 -6. 
106 European Union's second written submission, para. 115.  
107 Opening statement at the second substantive meeting of the Panel, para. 7.4.  
108 See European Union's response to Panel question No. 17.5, paras. 102 -110. 
109 See European Union's response to Panel question No. 17.5, para. 121.  
110 See European Union's response to Panel question No. 17.5, para. 124.  
111 See European Union's response to Panel question No. 17.5, para. 132.  WT/DS591/7/Add.1  
 
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  9.14.   Colombia recalls that paragraph 3(1) of the Panel's Working Procedures is clear that the 
"arguments" of the parties must be presented in a written submission before the first substantive 
meeting. This rule, used generally in all panel proceedings, has been applied on several occasions 
in previous disputes, in which the parties' arguments (part icularly those of the complainant party) 
have been dismissed when they have not been presented in the first written submission.112 In 
addition, Colombia emphasizes that respect for rule 3(a) of the Panel's Working Procedures is 
particularly relevant in orde r for the complainant party to establish a prima facie  case of alleged 
inconsistency at the earliest possible stage of the proceedings so that "the respondent [is in a 
position] to rebut the complainant's prima facie  case, by presenting evidence and argume nts".113 
9.15.   Colombia therefore asks the Panel to refrain from analysing any of the untimely arguments 
relating to the Subdirectorate's  analysis of the effects of the imports on domestic prices. However, 
at the very least, Colombia asks the Panel not to take into account the four aforementioned new 
arguments, as it is clearly unacceptable for the European Union to present them in the fina l stage of 
the proceedings (in its responses to the Panel's questions following the second substantive meeting).  
10  THE CLAIM UNDER ARTICLES 3.1 AND 3.4 RELATING TO THE ANALYSIS OF THE INJURY 
FACTORS SHOULD BE REJECTED  
10.1.   The European Union further cl aims that the Subdirectorate's analysis of the injury factors is 
inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement. In particular, the 
European  Union raises three arguments relating to the "methodology" used by the Subdirectorate in 
its analysis, as well as a further three "substantive" arguments. Colombia responds to each of these 
arguments below.  
10.1  The European Union has failed to demonstrate that a comparison between the 
reference period and the critical period is "highly problemat ic" 
10.2.   The European Union states that the Subdirectorate's injury analysis, based on a comparison 
of the "averages" from the reference period and the critical period, is "problematic" because this 
methodology "does not account for fluctuations in the d ata".114 
10.3.   The European Union's assertion about the Subdirectorate's analysis is incorrect. The 
Subdirectorate conducted a two -pronged analysis of the injury factors, namely: (i)  the performance 
of each variable over consecutive six -month periods; and (ii) the comparison between the average 
of each factor for the reference period and for the critical period. Through the two -pronged analysis 
of the injury factors, the Subdirectorate first ascertained the trends in each factor using six -monthly 
data. In o ther words, the trends were examined on the basis of seven reference points (seven 
six-month periods) falling within the investigation period. This analysis of the trends enabled the 
Subdirectorate to identify the "fluctuations" in each factor assessed. Th is is evident not only from 
looking at the graphs that the Subdirectorate included in the Final Technical Report, but also from 
the explanations of these graphs.  
10.4.   In the light of these explanations, Colombia is surprised by the European Union's readi ng of 
the Subdirectorate's determination. In particular, the European Union criticizes the Subdirectorate 
for analysing averages that, allegedly, would not account for fluctuations during the investigation 
period. The European Union's partial reading of th e Subdirectorate's methodology is particularly 
puzzling because, as far as Colombia is aware, no other investigating authority conducts such a 
thorough analysis of injury factors by examining six -monthly trends (annual trends are usually 
analysed), followe d by a comparison of the averages for the period of dumping and for the period 
just prior to that. In fact, Colombia understands that even the European authority for anti -dumping 
investigations tends only to conduct an annual  assessment of trends, which fo rms the basis for its 
conclusion of injury. An annual analysis obviously offers half the reference points of a six -monthly 
analysis, such as the one conducted by the Subdirectorate.  
 
112 See Appellate Body Report, EC – Faste ners (China) , para. 574. See also Panel Reports, 
US – Softwood Lumber VII , fn 9; EU – Biodiesel (Indonesia) , para. 7.141; Morocco – Hot-Rolled Steel (Turkey) , 
para. 7.64; Korea – Pneumatic Valves , para. 7.209 and EC – Fasteners (China) , para. 7.523.  
113 Appellate Body Report, Russia – Railway Equipment , para. 5.189.  
114 European Union's first written submission, para. 291.  WT/DS591/7/Add.1  
 
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  10.5.   In response to Colombia's explanation, the European Union further c laims that the 
Subdirectorate "focused on the average performance of the economic indices as compared across 
the two unequal periods".115 Colombia considers that, for its argument to be successful, the 
European Union should have identified a factor for whic h the analysis of the six -monthly trends and 
the six -monthly averages produced conflicting results and the Subdirectorate still chose to base its 
conclusion on the six -monthly averages (critical period and reference period). The European  Union 
has not iden tified any factors for which this occurred. For example, in the case of installed capacity 
use referred to by the European Union, the Subdirectorate found in its analysis of both the 
six-monthly trends and the six -monthly averages that there was a decline in installed capacity use, 
and, on that basis, the Subdirectorate found that the performance of that "variable" was 
symptomatic of injury. Therefore, even if it were correct that the Subdirectorate "focused" on the 
comparison between the six -monthly averag es (critical and reference periods), this would in no way 
vitiate the objectivity of the examination of the trends in installed capacity use.  
10.6.   Accordingly, the European Union's argument criticizing the comparison of the six -monthly 
averages for the r eference period and for the critical period should be rejected.  
10.2  The European Union has failed to demonstrate that there was anything incorrect in 
the data used for the analysis of installed capacity  
10.7.   The European Union further claims that the a nalysis of the trend in installed capacity use is 
incorrect because the data itself was not sufficiently comparable. In particular, the data from 2014 
were sourced from one company (Congelagro S.A.), whereas the data for the remaining sub -periods 
are sourc ed from two companies (Congelagro S.A. and Productos Alimenticios Frozen Express 
S.A.S.).116 
10.8.   Colombia does not understand why the emergence of this new producer in 2015 undermines 
the analysis of installed capacity use, and the European Union has fai led to provide an explanation. 
In particular, the Subdirectorate stated that, in first half of 2015, the company Productos Frozen 
Express S.A.S. began production and, as a result, its installed capacity was added to that of the 
company CONGELAGRO for the p urposes of the analysis of the domestic industry's overall installed 
capacity use. Clearly, installed capacity use is expressed as a percentage of the total capacity. 
Therefore, if a particular company has the capacity to produce 100 units in a given year and 
produces  60, the installed capacity use of the domestic industry (consisting of just one company) 
will be 60%. If, the following year, a new company is created with the capacity to produce 100 units, 
but produces only 60 that year, the overall installe d capacity use of the domestic industry (consisting 
of these two companies) will still be 60%. Therefore, the fact that the company Productos 
Alimenticios Frozen Express S.A.S. began production in 2015 and that both its installed capacity and 
its productio n were added to those of the company CONGELAGRO does not vitiate the 
Subdirectorate's analysis of installed capacity use for the purpose of determining injury.  
10.9.   Colombia considers it necessary to point out that the European Union complains about the 
analysis of "installed capacity use" rather than "installed capacity" per se . This clarification becomes 
important because the domestic industry's "installed capacity" is necessarily affected if a producer 
begins production any year after the start of the investigation period. In the hypothetical example 
outlined in the previous paragraph, the "installed capacity" increases from 100 to 200 if the domestic 
producer's capacity is added to that of the domestic industry during the investigation period. 
However,  as explained, the analysis of "installed capacity use" does not lose objectivity as a result 
of the domestic industry gaining or losing producers during the investigation period.  
10.10.   In any event, the European Union is mistaken when it claims that, wi th regard to installed 
capacity use, "there is plainly no consideration by [the Subdirectorate] of the relevance of when 
fluctuations occurred and how this is to be reconciled with a finding of injury."117 In its analysis, the 
Subdirectorate noted the drop in installed capacity use of 41.73 percentage points between the 
second half of 2014 and the first half of 2015. Furthermore, the Subdirectorate identified a 
subsequent decrease of 10.17 percentage points on average. The graph shows that this other 
signifi cant drop took place between the second half of 2015 and the first half of 2016. Lastly, the 
Subdirectorate noted that the decline continued during the critical period, namely, the second half 
 
115 European Union's response to Panel question No.  8.2, para.  271. 
116 European Union's first written submission, para. 294.  
117 European Un ion's response to Panel question No.  8.19, para.  339. WT/DS591/7/Add.1  
 
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  of 2016 and the first half of 2017, with slight decreases. The Subdirectorate thus found that the 
downward trend continued throughout the investigation period, albeit at a varying rate.  
10.11.   In summary, the analysis of the six -monthly trends revealed the six -monthly movements 
(trends), which would have shown fluctu ations if there were any. Similarly, the European  Union is 
also incorrect when it notes that there was no consideration of how these trends are "to be reconciled 
with a finding of injury".118 For the reasons provided in this subsection, Colombia requests th e Panel 
to reject the European Union's argument relating to the data used by the Subdirectorate for the 
purposes of the examination of installed capacity use.  
10.3  The European Union has failed to demonstrate that the analysis of the injury factors 
was de ficient  
10.12.   The European Union again claims that "this failure to conduct a comparison of equivalent 
data comes in addition to the overarching flaw described in section 7.3 above in respect to all 
calculations that relied on data which included non -dumped imports".119 Moreover, the 
European  Union claims that, to the extent that the Subdirectorate relied upon a flawed price effects 
analysis, this also necessarily vitiates the findings [of injury] and further demonstrates that Colombia 
has failed to adhere  to its obligations under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, 
both individually and collectively.120 
10.13.   These arguments are "consequential" to the cross -cutting claims under Articles  3.1 and 3.2 
of the Anti -Dumping Agreement. Colombia h as explained the reasons why these claims should be 
rejected. As a result, the European Union's third argument in relation to its claim under Articles  3.1 
and 3.4 is consequential and should also be rejected.  
10.4  The European Union has failed to demonstrate that the Subdirectorate did not take 
into account the factors with a positive performance  
10.14.   The European Union claims that the Subdirectorate simply mentioned the injury factors with 
positive trends during the investigation period, without explaining or assessing the importance of 
such factors in the overall conclusion regarding injury.121 In particular, the European Union refers to 
domestic sales and production as "key" factors that "registered an inc rease".122 However, as 
Colombia explains below, the European Union ignores the fact that the favourable trend in these two 
factors was explicitly addressed by the Subdirectorate.  
10.15.   With regard to the favourable trend in sales , the Subdirectorate analy sed the following in its 
causation examination: first, the Subdirectorate found that sales of the imports rose by  51.85%, 
while sales increased by 19.77%123; second, the Subdirectorate found that the imports' market share 
increased by 11 percentage points, while the domestic product's market share fell by 1  percentage 
point124; third, the Subdirectorate stated that "material injury was found" in, inter alia , "the share 
of the applicant's sales with respect to apparent domestic consumption"125; and fourth, in t he 
"Conclusion" section of the Final Technical Report (last page), the Subdirectorate found that the 
"increase in the market share of dumped imports displaced  the domestic producers and the share 
of the investigated imports with respect to the volume of production increased by 25.7  percentage 
points".126 
10.16.   Thus, although the Subdirectorate had previously acknowledged, in the causation analysis, 
the increas e in the domestic industry's sales of 19.77% in absolute terms, it eventually concluded 
that there had been a negative performance in "the share of the applicant's sales  with respect to 
apparent domestic consumption " contributing to "material injury". In o ther words, the 
Subdirectorate did take into consideration the 19.77% increase in absolute terms in the domestic 
 
118 European Union's response to Panel question No.  8.19, para.  339. 
119 European Union's first written submission, para. 296.  
120 European Union's first written submission, para. 296.  
121 European Union's firs t written submission, paras. 300 -305. 
122 European Union's first written submission, para. 301.  
123 Confidential Final Technical Report, (Exhibit COL -16 (BCI)), p. 109.  
124 Confidential Final Technical Report, (Exhibit COL -16 (BCI)), p. 109.  
125 Confidential Final  Technical Report, (Exhibit COL -16 (BCI)), p. 114.  
126 Confidential Final Technical Report, (Exhibit COL -16 (BCI)), p. 116.  WT/DS591/7/Add.1  
 
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  industry's sales but downplayed its importance ("relativized" its importance) in the light of the 
prevailing market conditions, particularly th e fact that demand increased and that most of this 
increase was captured by imports.  
10.17.   Regarding the positive trend in production , Colombia has stated that the Subdirectorate 
dedicated an entire page of its Final Technical Report to assessing "invest igated imports with respect 
to the volume of production". The Subdirectorate pointed out that the ratio of investigated imports 
to production volume increased by around 20 percentage points on average, with the exception of 
the last six -month period analys ed.127 In other words, whatever the increase in production in 
absolute terms, it was relativized by an even sharper rise in imports. It is thus clear that the 
Subdirectorate did evaluate the upward trend in production, not in isolation but in relation to th e 
increase in imports, and found that imports increased at a faster rate than production.  
10.18.   These explanations show that the Subdirectorate did take into account the increase in sales 
and production in absolute terms, but that increase was insufficie nt to benefit from growing demand. 
Therefore these increases in absolute terms are relativized by other factors that display a negative 
performance, especially (but not exclusively) market share. The Subdirectorate's explanations and 
findings contradict th e European Union's argument that the Subdirectorate did not examine the 
impact of the positive trend in sales and production in its overall injury examination. Accordingly, 
Colombia requests the Panel to dismiss this argument.  
10.5  The European Union has failed to establish that the Subdirectorate's assessment of 
six injury factors was deficient  
10.19.   The European Union claims that the Final Technical Report does not contain a proper 
assessment of six injury factors, as it "deliberately" excluded them on  the basis that they "provide 
general background information".128 The six factors contested by the European Union are: return on 
investments, factors affecting domestic prices, the magnitude of the margin of dumping, effects on 
cash flow, growth, and the ab ility to raise capital or investments. This argument is unfounded, as is 
explained below.  
10.20.   First, of the six challenged factors, four were analysed with respect to the total production 
of the domestic industry, and two in relation to the product und er consideration. The last two are 
the factors that could affect internal prices  and the magnitude of the margin of dumping . The 
European Union does not present any criticism of the factors that could affect domestic prices. 
However, with respect to the ma gnitude of the margin of dumping, the European  Union incorrectly 
claims that the Subdirectorate's explanations are insufficient. Colombia recalls that the 
Subdirectorate found that the margin of dumping for two companies was below the national inflation 
rate, while the margin of dumping for another company (Mydibel), which recorded the highest 
volume of exports to Colombia, was greater than the inflation rate in Colombia and that, as a result, 
the margin of dumping was considered "relevant".129 
10.21.   The E uropean Union does not claim that it is incorrect to analyse the magnitude of the margin 
of dumping in the light of the levels of inflation, or that this cannot lead to the conclusion that the 
margin of dumping is "relevant". Rather, it claims that these e xplanations are insufficient. However, 
Colombia considers that the European Union is too vague and imprecise in its argument and, 
therefore, it cannot be considered that it has met its burden of establishing a prima facie  case with 
respect to the lack of o bjectivity in the assessment of the magnitude of the margin of dumping for 
the purposes of the claim under Articles 3.1 and 3.4.  
10.22.   Second , with regard to the four remaining factors (return on investments, effects on cash 
flow, growth, and the ability  to raise capital), the European Union claims that they were not the 
subject of a "proper assessment" because the Subdirectorate had aggregate information on all the 
products produced by the domestic industry. In accordance with Article  3.6 of the 
Anti-Dumping Agreement, the Subdirectorate found that, regarding these four financial factors 
pertaining to the domestic industry, it was impossible to separate the information on the like product 
under investigation from that on other products. The Subdirectorate  then proceeded to analyse them 
 
127 Confidential Final Technical Report, (Exhibit COL -16 (BCI)), p. 95.  
128 European Union's first written submission, para. 301.  
129 Responses to the comments on the Essential Facts Technical Report, (Exhibit EU -17), p. 15.  WT/DS591/7/Add.1  
 
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  in an overall manner for the entire production of the domestic industry and not just in relation to 
the product under consideration.  
10.23.   In its analysis of these four factors, the Subdirectorate found them to be performi ng 
negatively (which supports the view that there is injury). However, the Subdirectorate was cautious 
in emphasizing that "we cannot establish with any certainty how each indicator specifically affects 
the domestic industry of frozen potatoes", i.e. speci fically the product under consideration.130 
Colombia does not understand how this responsible  and cautious  position adopted by the 
Subdirectorate is now challenged by the European Union, especially when Article  3.6 of the 
Anti-Dumping Agreement allows for t he analysis of certain injury factors on the basis of a broader 
universe of products than the product under investigation.  
10.24.   For the reasons given above, Colombia requests the Panel to reject the European  Union's 
argument that the Subdirectorate fail ed to make a "proper assessment" of the following six injury 
factors: the size (magnitude) of the margin of dumping, factors likely to affect prices, return on 
investments, effects on cash flow, growth, and the ability to raise capital.  
10.6  The European Union has failed to demonstrate that the analysis of injury factors did 
not examine the impact of the imports on the domestic industry  
10.25.   Lastly, the European Union claims that even for those factors in respect of which injury was 
found, "the analysis  presented by [the Subdirectorate] also falls significantly short of the 
requirement to examine the impact on the [domestic] industry".131 In particular, the European  Union 
notes that "[the Subdirectorate] has plainly not complied with the requirement to id entify whether 
the dumped imports had explanatory force for the state of the domestic industry".132 Once again, 
this argument appears to derive from an incomplete reading of the Final Technical Report. 
In particular, in the section entitled "Causal Link", t he Subdirectorate conducted a detailed 
seven -page examination of the "explanatory force"133 of the imports on the deterioration of the state 
of the domestic industry.134 
10.26.   Three conclusions emerge from section "5. Causation" of the Final Technical Report. First, 
the Subdirectorate's causation analysis was progressive : first, the evolution of domestic demand 
was observed; second, it was observed that sales of both the  imports and the domestic industry 
increased at different rates; third, it was observed that the market share of the imports rose while 
that of the domestic industry fell; fourth, the imports were found to have displaced the domestic 
industry in its own ma rket. This analysis has been described above.  
10.27.   Second , contrary to what the European Union seems to argue, the components of this 
progressive analysis are not scattered in such a way that Colombia has to search for them 
individually and then piece t hem together. Rather, all the components of the progressive analysis 
are logically sequenced one after the other on pages 108 -114 of the Final Technical Report 
(Exhibit  EU-4). 
10.28.   Third, the conclusion that the "dumped imports displaced domestic produc ers" is not an 
unsubstantiated theory of the Subdirectorate. Rather, it is a conclusion that appears just after the 
progressive causation analysis described above (demand - sales - market share). Therefore, the 
finding of "displacement" is properly support ed by a comprehensive analysis of the interaction 
between imports and the domestic industry in the Colombian market.  
10.29.   Moreover, the European Union alleges that "an 'evaluation' of each of the factors in 
Article  3.4 requires a process of analysis and  assessment of the role, relevance and relative weight 
of each factor  in the particular investigation". However, it is incorrect to claim that the authority is 
required to analyse the impact of imports on each particular factor. Article 3.4 indicates that the 
examination of the "impact of the dumped imports" relates to the "domestic industry". However, the 
examination of the "impact" includes an "evaluation" of all the factors "having a bearing on the state 
of the industry". Thus, the "evaluation" of each o f the factors is objective (if the performance is 
 
130 Responses to the comments on the Essential Facts Technical Report, (Exhibit EU -17), p. 14.  
131 European Uni on's first written submission, para. 308.  
132 European Union's first written submission, para. 314.  
133 Appellate Body Report, China – GOES , para. 136.  
134 Non-confidential Final Technical Report, (Exhibit EU -4), pp. 108 -114.  WT/DS591/7/Add.1  
 
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  positive and negative) and it is through  an overall reading of the behaviour of all the factors that 
the authority must conduct the "examination" of the impact of the dumped imports on the 
domestic  industry.  
10.30.   In conclusion, the European Union's sixth argument concerning the alleged failur e to examine 
the impact of imports on the domestic industry is unfounded and should be rejected.  
11  THE CLAIM UNDER ARTICLES 3.1 AND 3.5 RELATING TO CAUSATION SHOULD BE 
REJECTED  
11.1.   The European Union puts forward three arguments to attempt to demonstr ate that the 
causation analysis is inconsistent with Articles 3.1 and 3.5 of the Anti -Dumping Agreement.  
11.1  The European Union has failed to demonstrate that causation has been "vitiated" by 
alleged shortcomings in the injury analysis  
11.2.   The Europea n Union asserts that the Subdirectorate's causation analysis is "vitiated" by 
shortcomings in the analyses of the volume of the imports, the effects of the imports on the price of 
the domestic product and the impact on the state of the domestic industry. O n this basis, the 
European Union claims that the causation analysis is inconsistent with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement.135 
11.3.   This being an argument that is consequential to its previous claims under Articles  3.1, 3.2 
and 3.4, Colom bia has explained that there is no violation of these provisions and that there is 
therefore no basis for finding a consequential violation of Article 3.5. This first argument by the 
European Union should therefore be rejected.  
11.2  The European Union has  failed to demonstrate that the conclusion regarding 
causation was based simply on a "correlation"  
11.4.   The European Union claims that the Subdirectorate failed to adequately explain the existence 
of a causal link by confusing the concept of "correlation " with "causation".136 According to the 
European Union, the Subdirectorate "appears to conclude that because it found that there was an 
injury to the domestic market ... this must have been caused by the dumped imports".137 
11.5.   Once again, the European Un ion makes no reference to the Subdirectorate's determination to 
substantiate its claim. However, Colombia recalls, once again, that the Subdirectorate carried out 
its causation analysis on the basis of a progressive analysis  in which it evaluated the upwar d trend 
in demand, the levels of sales of the imports and the domestic product, and the trend in the market 
share of the imports and the domestic product. On this basis, the Subdirectorate found that there 
had been a negative performance in "the share of t he applicant's sales with respect to apparent 
domestic consumption " contributing to "material injury".138 Ultimately, all these elements led it 
to conclude that imports "displaced" the domestic industry in its own market.139 
11.6.   Colombia believes that thi s analysis has sufficient logical rigour for it to be observed that the 
domestic product's loss of market share (because it was unable to increase its sales at the same 
rate as the rise in demand) was caused by imports. Therefore, the European Union's argu ment that 
the Subdirectorate confused the concept of "correlation" with "causation" should be rejected.  
11.3  The European Union has failed to demonstrate that the analysis of the 
non-attribution factors was reduced to a descriptive narrative  
11.7.   Lastly , the European Union claims that the analysis of the non -attribution factors "is woefully 
deficient and essentially consists of a descriptive narrative".140 The European Union argues that, 
when an authority cites a non -attribution factor in its determinatio n, that triggers the obligation to 
 
135 European Union's first written s ubmission, para. 320.  
136 European Union's first written submission, para. 321.  
137 European Union's first written submission, para. 322.  
138 Non-confidential Final Technical Report, (Exhibit EU -4), pp. 108 -114.  
139 Non-confidential Final Technical Report, (Exhib it EU-4), p. 116.  
140 European Union's first written submission, para. 325.  WT/DS591/7/Add.1  
 
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  analyse it. In particular, the European Union criticizes the evaluation of the following 
three  non-attribution factors: the volumes and prices of non -investigated imports; the trade 
restrictive practices of Brazil and Sou th Africa; and the market satisfaction capacity.141 
11.8.   The European Union ignores the legal standard for non -attribution under Article  3.5 
(adopted  by various panels), according to which, for an authority to be required to analyse a 
non-attribution factor, it must have "evidence before [it] to indicate that a factor is injuring the 
domestic industry".142 Colombia has also observed that this legal standard is consistent with that of 
the European Court of Justice itself in relation to non -attribution, which requires there to be sufficient 
evidence in the record before the European authority is required to examine the injurious effects of 
a particular non -attribution factor.143 
11.9.   In the present case, however, the European Union fails to in dicate whether the Subdirectorate 
had before it evidence relating to the injury to the domestic industry caused by the three contested 
factors. Specifically, the European Union should refer the Panel (and Colombia) to the relevant part 
of the record where one of the interested parties has demonstrated the injurious effects of the three 
non-attribution factors contested in this dispute. The European Union has not done this.  
11.10.   On the contrary, the European Union alleges that there is an obligation to an alyse the 
challenged non -attribution factors even in the absence of evidence in the record demonstrating their 
injurious effects on the domestic industry. However, the European Union has not explained why it 
believes that the established case law outlined above is incorrect or inapplicable in this case.  
11.11.   In any event, and for the sake of completeness, Colombia has explained that the 
Subdirectorate did provide an analysis of two of the three non -attribution factors. Regarding the 
inclusion of imports with negative margins of dumping, the Subdirectorate stated that the dumped 
imports "represent[ed] a very significant volume of trade" and that, among them, Mydibel imports 
alone accounted for 66.97% of the total volume of dumped imports.144 Similarly, rega rding the 
capacity to meet the needs of the market, the Subdirectorate stated that the domestic industry had 
the capacity to meet between 58.6% and 70.8% of the domestic market needs145, and also observed 
that the domestic industry's market share stood at o nly 40.5% at the end of the investigation 
period.146 
11.12.   Lastly, regarding the trade restrictive practices of Brazil and South Africa, Colombia has 
explained that the anti -dumping measures of other countries for the same product and origin can 
be consid ered a direct cause of the increase in dumped imports in countries that are not yet 
protected. From this perspective, such anti -dumping measures in other countries are the opposite 
of a non -attribution cause under Article 3.5. The Subdirectorate mentioned these anti -dumping 
measures in the section on non -attribution simply in order to record their existence, but in the 
absence of evidence demonstrating their injurious effects on the domestic industry, the 
Subdirectorate correctly limited itself to pointing them out without further analysis.  
11.13.   Therefore, the claim regarding the non -attribution factors under Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement should be rejected in the light of the European Union's failure to establish 
that the Subdirector ate had before it evidence demonstrating that the three contested 
non-attribution factors were causing injury to the domestic industry.  
12  REQUEST FOR FINDINGS  
12.1.   For the reasons explained in this submission, Colombia respectfully requests the Panel t o 
reject all the European Union's claims under Articles  2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 5.3, 5.8, 6.5, 6.5.1 
 
141 European Union's first written submission, paras. 326 -329. 
142 Panel Report, Morocco – Definitive AD Measures on Exercise Books (Tunisia) , paras. 7.328 -7.330. 
See also Panel Reports , China – X-Ray Equipment , para. 7.267; and EU – Fatty Alcohols (Indonesia) , 
para. 7.196.  
143 See Case C -143/14, TMK Europe GmbH and Hauptzollamt Frankfurt (Oder) , 16 April 2015, para.  42. 
See also Case C -10/12, Transnational Company 'Kazchrome' AO , 19 Decem ber 2013, para. 28; Case C -398/05, 
AGST Draht - und Biegetechnik GmbH , 28 February 2008, para. 51; Case C -31/15, Photo USA Electronic 
Graphic Inc. , 2 June 2016, para. 79; and Case T -157/14, JingAo Solar Co. Ltd. , 28 February 2017, para. 196.  
144 Comments by i nterested parties on the Essential Facts Technical Report, (Exhibit EU -17), p. 31.  
145 Final Technical Report, (Exhibit EU -4), p. 115.  
146 Final Technical Report, (Exhibit EU -4), pp. 99 and 112.  WT/DS591/7/Add.1  
 
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  and 6.8, of the Anti -Dumping Agreement and Annex II, paragraphs 3 and 6, thereto. Consequently, 
Colombia considers it inappropriate to issue any reco mmendation under Article 19.1 of the DSU.  
12.2.   Colombia once again thanks the Panel and the Secretariat for all their work during these 
proceedings.  
_______________  
 WT/DS591/7/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of Japan  64 
Annex  C-3 Integrated executive summary of the arguments of the United States  69 WT/DS591/7/Add.1  
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL  
INTRODUCTION  
1. Brazil provides the following executive summary of its participation during the panel 
proceedings in this dispute.  
I. ARGUMENTS  
A. Articles  5.2, 5.3, and 5.4 regarding the initiation of an anti -dumping investigation  
2. Brazil observes that it is well established under WTO practice that the quantum and quality of 
the information necess ary for the purpose of initiating an investigation will be less demanding than 
that required for a final determination. It is only natural that an investigation will gradually become 
more precise and more complex as it advances. In this sense, later findin gs by the responsible 
authority cannot serve as a posteriori evidence that the initial investigation had been vitiated.  
3.  Brazil understands that Article  5.2 demands that the petitioner presents not the best 
information reasonably availab le, but, instead, presents sufficient  information reasonably available. 
Brazil also recalls that according to the panel in Argentina – Poultry Anti -Dumping Duties
1, Article  5.3 does not impose an obligation on the investigating authority, at that stage, to review 
the adequacy and accuracy of those facts per se , but rather to review the sufficiency of the evidence 
to justify the initiation of an investigation.  
4. Regarding the definition of "product under consideration", Brazil observes that neither 
Article 5.3 nor th e ADA in general contains a specific methodology that investigating authorities must 
follow. However, as stated by the panel in Guatemala – Cement II2, Article  5.3 should be read in 
close relationship with Article  5.2, which, by its turn, incl udes the "complete description of the 
allegedly dumped products" among the necessary requirements to initiate an investigation. Panels 
may assess claims under Article  5.3 in order to assure that an investigating authority has conducted 
an objective and unb iased analysis of the facts presented by the petitioners.  
5. Regarding Article  5.2 and the expression "where appropriate", Brazil understands that it 
should not be interpreted on the basis of Articles  2.1 and 2.2, which concern later stages in the 
investigation to which a higher threshold of assessment applies.  
6. Finally, in respect to Article  5.4, Brazil considers that investigating authorities may have 
discretion to determine whether a trade or industry association is representative of domestic 
producers, provided that the criteria in Article  5.4 are observed.  
B. Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement regarding confidentiality and 
"good cause shown"  
7. Brazil understands that "good cause" must be shown by the petitioner before the au thority 
deems the information confidential. The Spanish version of the ADA reinforces this perspective, as 
it reads that " toda información que sea confidencial (…) o que las partes (…) faciliten con carácter 
confidencial será, previa  justificación suficien te al respecto, tratada como tal por las autoridades ". 
8. Nevertheless, Article  6.5 does not prescribe any particular methodology that investigating 
authorities should take in order to assess whether "good cause" has been shown. Consequently, the 
type of i nformation needed to certify "good cause" may vary from case to case. Brazil considers that 
justifications under the examples provided in Article  6.5 ("because its disclosure would be of 
 
1 Panel Report, Argentina – Poultry Anti -Dumping Duties , para 7.60. 
2 Panel Report, Guatemala – Cement II , para. 8.35. WT/DS591/7/Add.1  
 
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  significant competitive advantage to a competitor or because its disc losure would have a significantly 
adverse effect upon a person supplying the information or upon a person from whom that person 
acquired the information"), or that refer to a similar or equivalent situation, are indicative of 
adequate justification of "goo d cause shown".  
9. Finally, although there is no methodology prescribed regarding "good cause shown" in the 
ADA, panels may examine claims under Article  6.5, as decided by the Appellate Body in Korea – 
Pneumatic Valves (Japan.)3, in order to assess if investigating authorities properly determined that 
"good cause" was appropriately argued and substantiated.  
C. Articles  2.1, 6.8 and paragraphs  3 and 6 of Annex II of the Anti -Dumping Agreement 
regarding the use of the information provided by the cooperati ng investigated companies.  
10. In Brazil 's view, investigating authorities are not entitled to reject information submitted by 
interested parties if the conditions of paragraph  3 of Annex II are satisfied, namely that the 
information provided is (i) verifi able; (ii) appropriately submitted so that it can be used without 
undue difficulties; (iii) supplied in a timely fashion; and, where applicable, (iv) supplied in a medium 
computer language requested by the investigating authority.  
11. Brazil underscores th at the ADA sets a high standard for determining whether an investigating 
authority can disregard information provided by cooperating parties, because its rules on the 
treatment of information are concerned not only with the level of precision of the inform ation on 
which an investigation is based, but also with the guarantee of the due process rights of the parties.  
12. Finally, Brazil sustains that what defines the use of "facts available" in an investigation is not 
the explicit and formal determination to do so, but rather the de facto procedure that an investigating 
authority adopts. Therefore, if an investigating authority does not explicitly mention recourse to 
"facts available", but still decides to use information other than that provided in the questi onnaires, 
that authority shall do so in a manner consistent with Article  6.8 and Annex II of the ADA.  
D. Article  5.8 of the Anti -Dumping Agreement and "immediate termination" of 
investigations and Article  3. 
13. Brazil understands that Article  5.8 requires the immediate termination of the investigation in 
respect of an exporter for which an individual margin of dumping of zero or de minimis  is found. 
Consequently, those exports must also be excluded from the injury and causation analyses under 
Article 3. 
E. Article  3.4 of the Anti -Dumping Agreement and injury analysis  
14. In Brazil 's view, Article  3.4 sets forth a non -exhaustive and non -hierarchical list of factors 
relevant to the assessment of injury. Nothing in the language therein supports the  conclusion that 
some factors are inherently and a priori  more important than others. In fact, the relevance of each 
factor may vary on a case -by-case basis.  
15. Additionally, Brazil sustains that investigating authorities must present an unbiased and 
objective examination of relevant factors, regardless of their favorable or unfavorable trend, in order 
to reach a balanced and unbiased evaluation of injury factors.  
 
 
3 Appellate  Body Report, Korea – Pneumatic Valves (Japan) , para. 5.399.  WT/DS591/7/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. ARGU MENTS RELATING TO THE DUMPING DETERMINATION  
A. Use of Facts Available under Article  6.8 and Annex  II of the 
Anti-Dumping  Agreement  
1. Japan agrees with the EU that investigating authorities should as much as possible use the 
primary information submitted by interested parties, and should not resort to other secondary 
sources of information.  
2. First, Japan agrees there is an important distinction between primary source information and 
secondary source information when applying facts available. To  the extent that an 
investigating authority has requested the information about export prices from exporters, the 
exporters become the primary source of such information. As Article  6.8 stipulates, if the 
exporters refuse access to, or otherwise do not pro vide, necessary information within a 
reasonable period or significantly impede the investigation, then Annex II must be applied to 
reject and replace that information. Thus, if an investigating authority does not rely on such 
information submitted by the e xporters, the authority must comply with the requirements 
stated in Article  6.8 and Annex II of the Anti -Dumping Agreement.  
3. The information from the exporters themselves responding to the questionnaire is the most 
probative information about the specifi c export transactions (including export price) for each 
such exporter. Information sourced from databases (including custom data) may be collected 
for different purposes and with different coverage. The key is the source's  proximity to the 
original source of the relevant information.  
4. As to the criteria for when an investigating authority shall take into account the information 
actually submitted by an interested party or not, the Anti -Dumping Agreement is clear. 
Paragraph  3 of Annex II requires that the information must be: (a) "verifiable", 
(b) "appropriately submitted so that it can be used … without undue difficulties", (c) "supplied 
in a timely fashion", and (d) "where applicable, … supplied in a medium or computer language 
requested by the author ities". In US ‒ Hot-Rolled Steel , the Appellate Body explained that if 
the conditions are satisfied, "investigating authorities are not entitled to reject information 
submitted" by interested parties, and cannot use facts available.1 
5. Second, Japan cons iders that the investigating authority must communicate to the interested 
party specifically and clearly what is the "necessary information" requested, and what 
problems (if any) may exist with that information. "Necessary information" relates to specific 
information held by an interested party that is requested by an authority for the purpose of 
making determinations.2 
6. Japan considers that this finding applies when an investigating authority establishes certain 
parameters, methodology or specific requi rements for "necessary information" during the 
investigation, or changes them during the investigation. The investigating authority cannot 
collect information from different sources and then pick what it likes best.  
7. Third, Japan notes that Article  6.8 a nd Annex II apply regardless of whether or not the 
investigating authority chooses to categorize its approach as "recourse to the 'facts available' 
mechanism". An investigating authority does not have discretion to ignore these requirements 
simply by avoid ing the use of the words "facts available" in explaining its conduct instead of 
declaring that it relied on facts available. When an investigating authority does not rely on the 
 
1 Appellate Body Report, US – Hot-Rolled Steel , para.  81. 
2 Panel Reports, Korea – Stainless Steel Bars , para.  7.185; EC – Salmon (Norway) , para.  7.343.  WT/DS591/7/Add.1  
 
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  requested primary source information, Article 6.8 specifically provides that " [t]he provision of 
Annex II shall be observed in the application of this paragraph".  (emphasis added ) 
8. While Colombia cites Ukraine ‒ Ammonium Nitrate  in this regard, this finding does not provide 
guidance for this dispute. In that earlier dispute, the p anel found that Russia failed to show 
that the Ukrainian investigating authority had actually resorted to facts available under 
Article  6.8, since the authority specifically referred to Article  2.2.1.1 of the 
Anti-Dumping  Agreement as the basis for its det ermination. This provision provided an 
independent legal basis for choosing factual information separate from Article  6.8 and 
Annex  II. Therefore, that decision does not apply here, where the investigating authority did 
not refer explicitly to any specific  provision about the selection of information as being the 
basis for their rejection.  
B. Price Information under Article  2 of the Anti -Dumping Agreement  
9. Japan believes that MINCIT's  refusal to take into account product differences among different 
produc t types cannot be justified just because the second source information used for export 
price did not provide distinctions based on product type.  
10. In this regard, the parties seem to agree that there is no methodological guidance in Article  2.4 
specifically as to how due allowance for differences affecting price comparability is to be made. 
Japan considers that comparison methodologies used in specific cases may have certain 
restrictions depending on the nature of particular price information to be compared. But the 
investigating authority cannot itself create an information gap, and then use that self -created 
gap to justify a refusal to make due allowance. The underlying primary source information 
from the exporters would have permitted a compari son based on different product types, but 
that information was unavailable only because of the flawed application of "facts available" as 
discussed in the prior section.  
11. To the extent that the export price sourced from custom declarations does not comp ly with 
Article  6.8 and Annex II, irrespective of any violation of Article  2.4, Japan agrees with the EU 
that the export price which is based on an incorrect and legally flawed information source 
could not constitute a proper basis for dumping calculation under Article  2.1 of the 
Anti-Dumping  Agreement, and thus the use of such incorrect information is inconsistent with 
Article  2.1 as well.  
II. ARGUMENTS RELATING TO THE INJURY DETERMINATION  
12. Japan agrees with the EU that any exporter under investigation not dumping or found to be 
below de minimis  threshold must be excluded from the injury and causation analysis under 
Article  3 of the Anti -Dumping  Agreement. If that exporter's sales as a whole are found not to 
be dumped, as a legal matter that exporter has  not been dumping at all.  
13. The relevant text clearly supports this understanding. The first sentence of Article  VI:1 of the 
General Agreement on Tariffs and Trade 1994 ("GATT 1994") provides that "dumping … is to 
be condemned if it causes … material inj ury" (emphasis added ). The second sentence of 
Article  VI:1 goes on to clarify that this "dumping" occurs only when the "a product" is being 
introduced at less than its normal value. Article  2.1 of the Anti -Dumping  Agreement repeats 
this definition of when "a product" can be deemed as "dumped". The dumping must therefore 
be linked to the specific product that is being dumped.  
14. Articles  3.1, 3.2, 3.4 and  3.5 of the Anti -Dumping  Agreement consistently provide that the 
relevant analyses shall be conducted fo r "the dumped imports". The analysis must be on the 
volume of the "dumped imports" under Article  3.1 and Article  3.2, first sentence. The analysis 
must be on the price effects of the "dumped imports" under Article  3.1 and Article  3.2, 
second  sentence. The impact on the domestic industry must be of "the dumped imports" under 
Article  3.1 and Article  3.4, first sentence. Finally, Article  3.5, first sentence, then stresses that 
"the dumped imports" ‒ particularly the "effects of dumping" ‒ are causing the injury. The 
repeated emphasis on "dumped imports" ‒ and not all imports ‒ sets forth a clear and 
unambiguous limiting principle on the basis for an injury finding under Article  3. WT/DS591/7/Add.1  
 
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  15. Accordingly, du mped imports should not be condemned for material injury that is not 
attributable to those dumped imports. If the subject goods being assessed for possible injury 
include non -dumped imports, the goods being analyzed are over -inclusive. And the injury and 
causation analysis of more than just the "dumped imports" departs from the text of Article  3 
and creates the risk of false attribution of the injury to the domestic industry to goods that 
are in fact not "dumped" rather than just to the "dumped imports" tha t are properly subject 
to the anti -dumping  duties.  
16. Previous findings by the Appellate Body and panels underline this understanding. In  
EC – Bed Linen (Article  21.5 ‒ India) , the Appellate Body confirmed that "[n]one of these 
provisions of the Anti -Dump ing Agreement can be construed to suggest that Members may 
include in the volume of dumped imports the imports from producers that are not found to be 
dumping" .3 The panel in EC ‒ Fasteners (China)  found that "[t]he text of the AD  Agreement is 
perfectly c lear in this regard … the consideration of 'dumped imports' for purposes of making 
an injury determination consistent with Articles  3.1, 3.2, 3.4 and  3.5 of the AD  Agreement 
entails the consideration of only those imports for which a margin of dumping grea ter than 
de minimis  is established in the course of the investigation".4 
17. These prior decisions reflect the basic idea of anti -dumping disciplines that all exporters found 
not to be exporting "dumped" goods are required to be excluded from the scope of  
investigation. There is no basis for including exporters found not to be dumping just because 
their export volume is smaller than other exporters. The analysis must exclude those exporters 
found not to be dumping, regardless of their relative share of the  market. The authority cannot 
ignore the provision of Article  5.8 that certain levels of below normal value pricing are 
considered legally de minimis  and should not be considered to be "dumped". The references 
in Articles  3.1, 3.2, 3.4 and  3.5 are all to " dumped imports", and it makes no sense to read 
these provisions to include imports from those exporters affirmatively found not to be 
dumping. That some exporters in a country are found to be dumping does not establish that 
all exports from that country sh ould be deemed as dumped.  
18. Japan considers that Article  5.8 provides important context that supports this interpretation. 
The text of Article  5.8 as interpreted by the Appellate Body demonstrates that an individual 
exporter  for which a margin of dumping of zero or de minimis  is determined should be 
excluded from the investigation  as a whole. The rationale for such complete exclusion from 
the remaining stages of the investigation is that imports from such exporter with a marg in of 
dumping of zero or de minimis  cannot be considered as "dumped" in that investigation.  
19. Moreover, Japan does not consider that the term "dumped imports" in Article  3 admits more 
than one permissible interpretation within the meaning of Article  17.6(ii). That Colombia can 
craft a possible interpretation does not make a flawed interpretation permissible. An 
interpretation that uses context to obscure the plain meaning of the text, that using other 
agreements to obscure the meaning of the Anti -Dumping  Agreement, and relies on negotiating 
history does not create a permissible interpretation of the text.  
20. Beyond these comments on the proper scope of the injury investigation, Japan would also like 
to make a general observation about the structure of inj ury determinations under Article  3. 
Article  3 of the Anti -Dumping  Agreement (titled "Determination of Injury") contains several 
paragraphs setting out an investigating authority's  obligations with regard to various aspects 
of an injury determination in ant i-dumping investigations.  
21. As the Appellate Body said in China ‒ GOES , various paragraphs of Article  3 "contemplate a 
logical progression of inquiry leading to an investigating authority's  ultimate injury and 
causation determination".5 The inquiry set forth in Article  3.2 and the examination required 
under Article  3.4 "are necessary in order to answer the ultimate question" in Article  3.5 "as to 
whether subject imports are causing injury to the domestic industry".6 
 
3 Appellate Body Report, EC – Bed Linen (Article  21.5 – India) , para.  112. 
4 Panel Reports, EC – Fasteners (China) , para.  7.354 ; EC – Salmon (Norway) , para.  7.625; Argentina – 
Poultry Anti -Dumping Duties , para.  7.300.  
5 Appellate Body Report, China – GOES , para.  128. 
6 Ibid. paras.  128, 143 and 149.  WT/DS591/7/Add.1  
 
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  22. Based on this ov erall structure of Article  3, Japan agrees with EU's  general arguments that, 
for the injury determination to be reasoned and adequate, and based on positive evidence 
and an objective assessment as required under Article  3.1, each step under Articles  3.2, 3 .4 
and 3.5 must consist a logical progression leading to an ultimate injury and causation 
determination. Each analytic step needs to be logically consistent, and reasonably supports 
the final conclusion of injury and causation. The reasoning must be intern ally consistent, must 
consider all of the relevant evidence, and must establish the required "causal relationship" 
between the dumped imports and the injury.  
23. With regard to Article  3.2 specifically, the analysis of price effects must reflect the dynami cs 
of how prices change over time and must show how the adverse price domestic trends are 
"the effect of" the import prices. As the Appellate Body has stressed, it is critical to assess 
"how these prices interact over time".7 The broader the time periods considered, the less likely 
the analysis will reveal what is truly important for the analysis under Article  3.2. 
24. Turning next to Article  3.4, a finding of material injury must rest on an actual "evaluation" of 
all of the e numerated factors, and not just a list of them. This evaluation needs to serve as 
the "meaningful basis" for the eventual finding of causation under Article  3.5.8 A mere listing 
of positive factors without any discussion will rarely be sufficient.  
25. Finally, with regard to Article  3.5, the text requires careful analysis and not simplistic 
conclusions. The investigating authority must provide written analysis that shows how it 
"demonstrated" the causal link based on a careful "examination" of the record. It is not enough 
to note a mere correlation, or to assert a connection that has not actually been demonstrated 
through careful examination of "all relevant evidence", including contrary evidence. That is 
precisely why Article  3.5 specifically requires that  other factors be examined, and they "must 
not be attributed" to the dumped imports. For the non -attribution analysis, it is not enough to 
describe other factors, and then to dismiss them without a complete and adequate explanation 
why. 
26. These specific obligations are important both individually, and in how they fit together. The 
overall finding that dumped imports caused injury under Article  3 must tie these different 
elements into an internally consistent, persuasive, fact -based written explanation by the 
investigating authority. Japan understands that this is the logical progression contemplated in 
Article  3, as found by the Appellate Body.  
III. ARGUMENTS RELATING TO THE CONFIDENTIAL INFORMATION  
27. First, with regard to the required level of identific ation of information for claims under 
Articles  6.5 and  6.5.1, Japan considers that the burden to identify the relevant information is 
on a claimant so that a respondent can duly provide its rebuttal and panels can then resolve 
any disputes. Having said tha t, Japan does not consider that a claimant must always prepare 
separate lists of items of relevant information for the purpose of identification, as Colombia 
suggests. How a claimant identifies the relevant information for claims under Articles  6.5 
and 6.5.1 depends on the particular circumstances of each case, and needs case -by-case 
analysis.  
28. Second, Japan would like to comment on the legal standard and elements under these 
provisions regarding the "good cause" to be shown and the non -confidential summ aries to be 
provided. Japan considers that, while the confidentiality of information submitted by the 
interested parties should be fully respected, when an investigating authority is allowed to treat 
as confidential the information submitted by applicant(s ) without confirming and assessing 
the good cause shown or requiring non -confidential summaries, other interested parties 
cannot have a clear understanding about the information against which they need to defend 
their interests. Such defects will deprive t he interested parties of due process.  
29. More specifically, with regard to Article  6.5, the Appellate Body has further clarified that the 
alleged "good cause" must constitute "a reason sufficient to justify the withholding of 
 
7 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.160.  
8 Appellate Body Report, China – GOES , para s. 145 and 154 (quoted in Appellate Body Repo rts, China – 
HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.211).  WT/DS591/7/Add.1  
 
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  information from both the pub lic and from the other parties interested in the investigation", 
who would otherwise have a right to view this information under Article  6.9 
30. Considering the balance between protecting the confidentiality of the information and the due 
process rights o f the interested parties, even when commercial and financial information of a 
domestic producer is supported with a "good cause" shown and can be treated as confidential 
information, such information should not be simply redacted. Instead, investigating au thorities 
should provide certain narratives or alternative summary presentations of numerical 
information (such as certain indexes) that represent the original information so that the 
interested parties can understand from such narrative or summary whether  the original 
information is correct or whether the original information can actually support the particular 
arguments or findings based on such summarized information, in light of the particular context 
of the information. In other words, the interested p arties need sufficiently detailed summaries 
of the original information to be able to gain a reasonable understanding of the content and 
to defend their interests. In this regard, Japan does not think that the "numerical" or 
"individualized" nature of info rmation necessarily prevents it from being 
summarized/supplemented by certain narratives or indexes in every case.  
31. Even in cases where it was not possible for a relevant interested party to furnish a 
non-confidential summary for such information, the i nvestigating authority must ensure that 
the interested party who submitted the relevant information identify the exceptional 
circumstances excusing this failure, provide a statement explaining the reasons why 
summarization was not possible, and scrutinize such statements to determine whether they 
established exceptional circumstances and whether the reasons given appropriately explained 
why, under the circumstances, no summary that permitted a reasonable understanding of the 
information's  substance was poss ible. 
32. These obligations imply that, if "good cause" has not already been shown, the investigating 
authority must make a request to the submitting party to do so. Japan considers that the 
aforementioned obligation of an investigating authority to scruti nize the party's showing of 
the good cause would require "the party's  showing" of the good cause as a prerequisite, and 
thus would necessarily entail an obligation to request that the submitting party show the 
good cause if it had not otherwise done so whe n originally submitting the information. The 
text requires the good cause to be "shown", and not just found. Accordingly, someone must 
"show" the good cause, and contextually the person making the request is logically in the best 
position to make that show ing. The investigating authority should be neutral between the 
differing perspectives of the parties, and cannot make the case for the submitting party when 
the submitting party did not seek to establish good cause.  
 
 
9 Appellate Body Report, EC – Fasteners (China) , para.  537. WT/DS591/7/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
I. CLAIMS RELATING TO THE DUMPING DETERMINATION  
1. Article  2.1 is a definitional provision that, "read in isolation, do[es] not impose independent 
obligations." The definitions set out in Article  2.1 certainly play an important role in the interpretation 
of other provisions of the Anti -Dumping Agreement, but they do not specify how "export price" is to 
be determined. The  determination of export price is governed by Articles  2.3 and 2.4 of the 
Anti-Dumping Agreement . 
2. Article  6.8 and Annex II set out the conditions in which an investigating authority may make 
a determination on the basis of facts available.  Although the conditions set out in Article  6.8 and 
Annex II play an important role in defining when "preliminary and final determinations, affirmative 
or negative, may be made on the basis of the facts available" , Article  6.8 and Annex II also do not 
specify how "expor t price" is to be determined. Therefore, Article  2.1 does not impose an 
independent obligation on Members regarding the determination of "export price" , and Article  6.8 
and Annex II do not address how "export price" is to be determined.  
3. Next, Article  6.8 permits an investigating authority to make a determination on the basis of 
facts available when an interested party refuses access to, or otherwise does not provide, 
information that is necessary to an investigation within a reasonable period of time, or  significantly 
impedes the investigation.  
4. Annex II, paragraph  3, contains a number of conditions which, if met, indicate to an 
investigating authority that submitted information "should be taken into account when 
determinations are  made" provided that the information is: (1) "verifiable"; (2) "appropriately 
submitted so that it can be used without undue difficulties"; (3) "supplied in a timely fashion"; and 
(4) where applicable, "supplied in a medium or compute r language requested by the 
authorities."  If the information submitted by the interested party fails to meet one of the conditions 
set out in paragraph  3, neither Article  6.8 or Annex II indicate that the investigating authority should 
take into account that information.  
5. Annex II, paragraph  6, uses similar language: If the information submitted by an interested 
party is not accepted by the investigating authority, then "the supplying party should be informed 
forthwith of the reasons therefor, a nd should have any opportunity to provide further explanations 
within a reasonable period … ". If the interested party provides further explanations and the authority 
does not consider those explanations satisfactory, "the reasons for the rejection of such  evidence or 
information should be given in any published determinations." Therefore, while the text of Annex II, 
paragraphs  3 and 6, urge the investigating authority to take into account, or not disregard, 
information on the record that meets the criteria  of those provisions, the ordinary meaning of these 
provisions does not require Members to utilize that information . 
6. In sum, the Anti -Dumping Agreement provides that when an interested party refuses access 
to, or otherwise does not supply necessary info rmation, or significantly impedes the investigation, 
the investigating authority may resort to the facts available to make its determination. However, 
where information is provided that is verifiable, appropriately submitted so that it can be used 
without undue difficulty, supplied in a timely fashion, and, where applicable, supplied in the 
requested medium, this information should be taken into account.  
7. Finally, Article  2.4 obligates an investigating authority to make a "fair comparison" between 
the exp ort price and the normal value when determining the existence of dumping and calculating 
a dumping margin. The text of Article  2.4 presupposes that the appropriate normal value has been 
identified. Once normal value and export price have been established, the investigating authority is 
required to select the proper sales for comparison (sales at the same level of trade and as nearly as 
possible the same time) and make appropriate adjustments to those sales (due allowances for 
differences which affect price comparability).  WT/DS591/7/Add.1  
 
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  8. However, if the exporters have not provided evidence demonstrating to the authorities that 
there is a difference affecting price comparability, or argument demonstrating that existing 
information on the record reflects a difference affec ting price comparability, there would be no basis 
for the investigating authority to make an adjustment and no requirement to do so. An authority 
thus is not obligated to accept a request for an adjustment that is unsubstantiated.  
9. A determination of whe ther the obligation in Article  2.4 has been met will depend on the 
specific facts and circumstances at issue. Therefore, consistent with Article  11 of the DSU and 
Article  17.6(i) of the Anti -Dumping Agreement, the question of whether Colombia failed to mak e 
reasonable adjustments will depend on whether the Panel determines that the European  Union has 
shown that MINCIT's  findings could not have been made by an unbiased and objective investigating 
authority.  
II. CLAIMS RELATING TO THE INJURY AND CAUSATION DET ERMINATIONS  
10. Article  3 focuses on the investigating authority's  injury analysis of the effect or impact of 
"the dumped imports" . Article  2.1 defines dumped products, "[f]or the purposes of 
[the Anti-Dumping] Agreement" , on a countrywide basis. The references to "the dumped imports" 
throughout Article  3 therefore concern all imports of the product from the countries subject to the 
investigation.  
11. Article  5.8, however, requires an authority to terminate an anti -dumping investigation with 
respect to any exporter or producer for which an individual margin of dumping is determined to be 
zero or de minimis . Therefore, once a zero or de minimis margin has been finally determined for a 
particular exporter or producer, the inve stigation must be terminated in all aspects, including the 
exclusion of the imports of that exporter or producer from the authority's  injury analysis of the effect 
or impact of "the dumped imports" . 
12. The United States recalls that prior disputes have ad dressed this issue. In Argentina – Poultry  
Anti-Dumping Duties , the panel  considered that "the ordinary meaning of … the term 
'dumped  imports' [in Article  3] refers to all imports attributable to producers or exporters for which 
a margin of dumping greater  than de minimis  has been calculated. The term 'dumped imports' 
excludes imports from producers/exporters found in the course of the investigation not to have 
dumped" . According to the panel, the investigating authority's  failure to exclude the imports of 
two companies found not to have been dumped breached Articles  3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping Agreement. In addition, the Appellate Body in EC – Bed Linen ( Article  21.5 – India)  
recognized that "whatever methodology investigating authorities choose for determining the volume 
of dumped imports, if that methodology fails to ensure that a determination of injury is made on the 
basis of 'positive evidence' and in volves an 'objective examination' of dumped imports  ‒ rather than 
imports that are found not to be dumped  ‒ it is not consistent with paragraphs  1 and 2 of Article  3". 
13. For the above reasons, the United  States agrees that the references to "the dumped i mports" 
throughout Article  3 exclude the imports of any exporter or producer for which an individual margin 
of dumping is determined to be zero or de minimis . 
14. Next, Article  3.4 mandates that "[t]he examination of the impact of dumped imports on the 
domestic industry concerned shall include an evaluation of all relevant economic factors and indices 
having a bearing on the state of the industry" and lists specific economic factors to be evaluated. 
Article  3.4 indicates that its list of factors and indices  "is not exhaustive, nor can one or several of 
these factors necessarily give decisive guidance" . 
15. Article  3.4 does not dictate the methodology that should be employed in conducting the 
examination of the impact of dumped imports on the domestic industr y, or the manner in which the 
results of this examination are to be set out in the record of the investigation. A determination, 
through its demonstration of why the authority relied on the specific factors it found to be material 
in the case, may disclose  why other factors on which it did not make specific findings were accorded 
little weight or deemed not relevant.  
16. Finally, nothing in Article  3.4 requires an authority to reach a negative determination of injury 
merely because a domestic industry has r eported a number of positive or improving economic 
indicators during the period of investigation. Nor does it follow as matter of logic from a conclusion WT/DS591/7/Add.1  
 
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  that an industry is being injured that every indicator must be negative. As the panel in EU – Footwear  
(China)  reasoned, "it [is] clear that it is not necessary that all relevant factors, or even most or a 
majority of them, show negative developments in order for an investigating authority to make a 
determination of injury" . An authority thus is not requir ed to find that a certain number of injury 
factors declined during the period of investigation in order to make an affirmative determination of 
injury.  
EXECUTIVE SUMMARY OF U .S. THIRD PARTY ORAL STATEMENT  
17. Article  3.1 sets forth two overarching obligati ons. The first obligation is that the injury 
determination must be based on "positive evidence" . The second obligation is that the injury 
determination must involve an "objective examination" of the volume of the dumped imports, their 
price effects, and th eir impact on the domestic industry.  
18. Although Article  3.1 indicates that these obligations extend to every aspect of an investigating 
authority's  injury analysis, Article  3.1 does not articulate the analysis that an authority must 
undertake to determin e whether the "volume of the dumped imports" , "the effect of the dumped 
imports on prices in the domestic market for like products" , or "the consequent impact of these 
imports on domestic producers of such products" , cause injury. It is the succeeding paragraphs – 
Articles  3.2, 3.4, and 3.5 – that do so.  
19. For example, Article  3.2 addresses the investigating authority's  consideration  "[w]ith regard 
to the volume of the dumped imports" and "[w]ith regard to the effect of the dumped imports on 
price" . Article  3.4 discusses the factors that an authority should evaluate in examining the impact of 
dumped imports on the domestic industry. A nd Article  3.5 specifically addresses the causation and 
non-attribution analyses.  
20. The references to "the dumped imports" throughout Article  3 exclude the imports of any 
exporter or producer for which an individual margin of dumping is determined to be zero or 
de minimis . However, while it is true that an investigating authority breaching one or more of the 
obligations of Articles  3.2, 3.4, and 3.5 consequentially breaches Article  3.1, it is not necessarily 
true that an authority breaching one or more of  the obligations of Article  3.1 consequentially 
breaches Articles  3.2, 3.4, and 3.5.  
EXECUTIVE SUMMARY OF U .S. THIRD PARTY RESPONSES TO QUESTIONS  
I. CLAIMS UNDER ARTICLE  5.3 
21. Article  5.4 provides that an investigation shall not be initiated unless the a uthority has 
determined that the application for relief has been made by or on behalf of the domestic industry. 
Therefore, whenever an application is submitted by an entity on behalf of the domestic industry, an 
authority may initiate an investigation only  after it has determined that the application is supported 
by the domestic industry according to the requirements set out in Article  5.4. 
22. Under Article  5.2, when an entity files an application "on behalf of the domestic industry, 
the application shall identify the industry on behalf of which the application is made by a list of all 
known domestic producers of the like product (or associations of domestic producers of the like 
product)" . Article  5.2 makes clear that "[s]imple assertion [in the applicatio n], unsubstantiated by 
relevant evidence, cannot be considered sufficient  to meet the requirements of this paragraph" . 
Further, under Article  5.3, an investigating authority must "examine the accuracy and adequacy of 
the evidence provided in the applicatio n to determine whether there is sufficient evidence  to justify 
the initiation of an investigation" . Therefore, the operative standard by which an authority shall 
determine under Article  5.4 whether an entity's  application has been made on behalf of the dom estic 
industry is "sufficient evidence" . 
23. The ordinary meaning of the term "sufficient" is defined, in part, as "[a]dequate (esp. in 
quantity or extent) for a certain purpose; enough ( for a person or thing, to do something)" . 
Article  5.3 requires an authority to "examine the accuracy and adequacy of the evidence provided 
in the application to determine whether there is sufficient evidence to justify the initiation of an 
investigation" . Article  6.6 indicates that "[e]xcept in circumstances provided for in [Article  6.8 
regarding the use of facts available], the authorities shall during the course of an investigation satisfy WT/DS591/7/Add.1  
 
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  themselves as to the accuracy of the information supplied by interested parties upon which their 
findings are based" . Therefore, to the extent an authority relies upon representations by a trade or 
business association regarding the support for an application, that authority must satisfy itself as to 
the accuracy and adequacy of those representations. Where it does so, an a uthority has acted 
consistent with the obligations set out in Article  5.4. 
24. Finally, the term "where appropriate" should be interpreted in the context of the introductory 
clause of Article  5.2, which states that "[t]he application shall contain such inf ormation as is 
reasonably available to the applicant ". The information provided in an application need not be of the 
same quantity or quality that would be necessary to make a preliminary or final determination. The 
term "where appropriate" in Article  5.2(iii) thus anticipates that there may be circumstances in which 
it is "appropriate" for the applicant to submit third -country sales or constructed value data in its 
application as evidence of normal value.  
II. CLAIMS UNDER ARTICLES  6.5 AND 6.5.1  
25. The lan guage of Article  6.5 does not obligate an authority to "request" that a party providing 
information show good cause that the information should be accorded confidential treatment. As the 
panel in EU – Footwear (China)  recognized, "there is nothing in Artic le 6.5 which would require any 
particular form or means for showing good cause, or any particular type or degree of supporting 
evidence which must be provided" and "the nature of the showing that will be sufficient to satisfy 
the 'good cause' requirement w ill vary, depending on the nature of the information for which 
confidential treatment is sought" . The panel in Korea – Stainless Steel Bars further observed that 
"Article  6.5 does not specify the manner in which 'good cause' is to be established. This lack  of 
specificity necessarily means that the exact manner in which 'good cause' should be established is 
not prescribed" . Instead, "the nature and the degree of the requirement to show good cause depends 
on the information concerned" . 
III. CLAIMS UNDER ARTIC LE 2.1, ARTICLE  6.8, AND ANNEX II  
26. Article  6.8 and Annex II establish the expectation that an investigating authority will use the 
information that it requires from an interested party to the extent that such information can be used. 
Article  6.8 indicat es that an authority may make a determination based on information not provided 
by an interested party, but only where the "interested party refuses access to, or otherwise does 
not provide, necessary information within a reasonable period or significantly  impedes the 
investigation" . Paragraph 1 of Annex II indicates that an authority should "specify in detail the 
information required from any interested party" and "ensure that the party is aware that if 
information is not supplied within a reasonable time,  the authorities will be free to make 
determinations on the basis of the facts available" . Therefore, given Article  6.8 and paragraph 1 of 
Annex II, where an interested party provides access to necessary information within a reasonable 
period of time and d oes not otherwise significantly impede an investigation, the information so 
provided should be used by the authority.  
27. Paragraphs 5 and 6 of Annex II further indicate that an authority should not arbitrarily 
disregard the information provided by an inte rested party. According to paragraph 5, even when 
such information "may not be ideal in all respects, this should not justify the authorities from 
disregarding it, provided the interested party has acted to the best of its ability" . Meanwhile, 
paragraph 6 notes that where "the evidence or information is not accepted, the supplying party 
should be informed of the reasons therefor , and should have the opportunity to provide further 
explanations within a reasonable period" . 
28. In sum, an investigating authori ty should begin its calculation with an examination of the sales 
transaction data submitted by the interested parties in response to the authority's  request for this 
information absent a finding that this information could not be used for the reasons set f orth in 
Article  6.8 and Annex II. The Anti -Dumping Agreement establishes the expectation that an authority 
will use the information that it requires from an interested party, even if that information is not ideal 
in all respects. The fact that an authority  makes no explicit and formal determination about the use 
of facts available does not release it from this requirement.  WT/DS591/7/Add.1  
 
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  IV. CLAIMS UNDER ARTICLE  3 AND ARTICLE  3.4 
29. Article  5.8 requires an authority to terminate an anti -dumping investigation where it 
determines the margin of dumping is de minimis . Since the Article  3 injury determination can only 
be rendered as part of an "investigation" , once an investigation has been terminated under 
Article  5.8, the vehicle for making any injury determination likewise terminates. Therefore, where 
an authority terminates an investigation of a country, producer, or exporter under Article  5.8 based 
on a determination that the margin of dumping is de minimis , this termination results in the  exclusion 
of the imports of that country, producer, or exporter from the injury analysis under Article  3 of the 
effect or impact of "the dumped imports" . 
30. Article  3.4 mandates that "[t]he examination of the impact of dumped imports on the domestic 
industry concerned shall include an evaluation of all relevant economic factors and indices having a 
bearing on the state of the industry" and lists specific economic factors to be evaluated. Compliance 
with Article  3.4 requires the collection of a broad range  of information concerning domestic industry 
performance, including sales, profits, output, market share, productivity, return on investments, 
utilization of capacity, cash flow, inventories, employment, wages, growth, and ability to raise capital 
or inves tments.  
31. Article  3.4 indicates that its list of factors and indices "is not exhaustive, nor can one or several 
of these factors necessarily give decisive guidance" . Nothing in Article  3.4, or any other provision of 
the Agreement, provide further guidanc e on which factors may "give decisive guidance" as to the 
impact of dumped imports on the domestic industry. Article  3.4 also does not dictate the 
methodology that should be employed by the authority, or the manner in which the results of this 
evaluation a re to be set out. Accordingly, none of the factors listed in Article  3.4 is "key" relative to 
any of the other factors listed in this provision. Indeed, the importance of certain factors may vary 
significantly from case to case, and the relative weight tha t an authority may give to certain factors 
in an investigation has no bearing on their importance vis -à-vis other factors addressed in 
Article  3.4. 
32. Finally, Article  3.4 does not require an authority to explicitly analyze the impact of each of the 
factors with a "trend favourable" for the domestic industry as part of its injury analysis. For example, 
in EC – Tube or Pipe Fittings , the Appellate Body report explained that an investigating authority 
need not make specific findings for every factor set fort h in Article  3.4. The report went on to observe 
that, while it is mandatory to evaluate all fifteen  factors set forth in Article  3.4, "because Articles  3.1 
and 3.4 do not regulate the manner  in which the results of the analysis of each injury factor are to  
be set out in the published documents, … it is not required that in every anti -dumping investigation 
a separate record be made of the evaluation of each of the injury factors listed in Article  3.4". 
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